The debate
Peter Cheney summarises the current copyright debate.
Copyright infringement is theft under Irish law but legislation also allows exceptions for the ‘fair dealing’ of created material. The maximum penalties under the 2000 Act were a £100,000 fine or five years in prison.
The current debate on copyright centres on how consumers can enjoy music, art and literature online, while the authors also receive a financial reward for their creativity.
The European Communities (Copyright and Related Rights) Regulations 2012 arise from the EMI and others v. UPC judgment in the High Court in October 2010. Mr Justice Charleton declined to grant an injunction to prevent infringement under the Copyright and Related Rights Act 2000. Ireland, he found, had not fully transposed the related EU directives.
Under the Copyright Directive 2001 and the Enforcement Directive 2004, copyright holders can apply for an injunction against internet service providers used by third parties to infringe copyright. Furthermore, the e-Commerce Directive 2000 allows courts to order the termination or prevention of copyright infringements.
The 2012 Regulations allow a copyright owner to apply to the High Court for an injunction against an intermediary whose services are used by a third party to infringe copyright. Minister of State for Research and Development Seán Sherlock stressed that this statutory instrument only re-affirms the Government’s legal line.
For its part, the Internet Service Providers Association of Ireland questioned the Department of Jobs, Enterprise and Innovation’s apparent haste, and the lack of input from the Oireachtas or the European Court of Justice. That court has ruled that a general obligation on ISPs to monitor communications on their network is incompatible with European law (SABAM v. Scarlet, 24 November 2011).
Copyright is regularly infringed by users on YouTube, although the site owners (Google) also include online advice on copyright principles, allow owners to report problems and can suspend accounts which break the rules. Content ID automatically detects infringing videos.
In an aggressive protest against the law, the Anonymous hackers group brought down the Department of Justice and Equality and Department of Finance websites in January.
The Stop SOPA Ireland campaign compares the regulation to the strict Stop Online Piracy Act proposed by Republican Congressman Lamar Smith, which would empower the US Attorney General to take action against ‘foreign infringing sites’.
Defendants will be obliged to go through the High Court, although this is the norm for copyright cases. Strict regulation of the internet, it alleges, would deter investment. The Government rejects the comparison and contends that SOPA would be untenable under EU law.
“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,” Seán Sherlock told the Dáil on 31 January, affirming the legal gravity of copyright infringement.
Minister Sherlock has kept open the option of primary legislation at some point but warned that legislation would not solve internet piracy. A voluntary solution, agreed between ISPs, copyright holders and the ICT industry was, in his view, required.
Sherlock saw the regulations as the next step in making Ireland “a model for international best practice” in online copyright. He immediately launched a 182-page consultation document on reviewing copyright law (an indication of its complexity) and urged all interest groups to study and respond to it. The deadline is 31 May.
That paper has been prepared by the Copyright Review Committee, established in May 2011, which has been examining current Irish legislation for potential improvements. Conclusions will be set out in its final report. The review included considering whether the American “fair use doctrine” could be applied in Ireland and the European Union. This may result in amendments to Irish legislation, although any significant changes (to EU directives) would need to go to Brussels: a lengthy process involving the Commission, the Council of Ministers and the European Parliament.
