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In full: Seán Sherlock’s full briefing note on copyright protection

Image: James Horan/Photocall ireland

THE FOLLOWING is the full text of a briefing note prepared by innovation minister Seán Sherlock this evening, and circulated to all members of the Dáil and the Oireachtas.

TheJournal.ie understands that the note has been circulated for the information of members this evening, in a bid to minimise the need for disruption to the Dáil schedule tomorrow.

It is also understood that the matter may be raised during the Dáil’s topical issues session tomorrow, and that Sherlock is willing to speak on the topic if TDs wish.

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.

As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario. This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.

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 record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.

The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement. The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties. For the avoidance of doubt, the Government has decided 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. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and 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.

I trust that this information will clarify the issue.

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Comments (30 Comments)

  • ged_star 28 days ago #
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    Another political Gobshite.

    Reply
  • Charles Julienne 28 days ago #
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    So, he tells us all this will definitely not result in website blocking or restrictions on users’ freedom.

    Yet, he admits here that the reason the SI has been drafted is to allow the injunction of website blocking and three-strikes sought by EMI etc. against UPC.

    Reply
  • Paul O' Hanlon 28 days ago #
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    He just doesn’t seem to understand what he’s doing with this, and how much of an affect it could have on internet usage in Ireland for businesses and everyday users. Piracy should be dealt with and while I don’t have all the answers I don’t think this is the way it should be done.

    Giving power to the entertainment industry who can sink money and time into their cases with ease is a terrible idea, on top of that is there a clear definition of what constitutes copyright infringement?

    The posting youtube links on blogs/social media will probably come under fire but how is that different to me using free internet radio stations (like lastFM) to play music to my friends? Before anything else happens, double standards like this need to be addressed.

    Reply
    • Jimmy 28 days ago #
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      Piracy is not wrong. It aids artistry, giving artists of all shades a wealthy melting pot of ideas. The only way to satisfy both ‘parties’, as I see it, the ‘pirate’ and the struggling artist (not the wealthy one who makes money from touring and such anyway) is through a free, communist society. Within capitalism, it just cannot work. Someone will always get the raw end – be it the downloader or the struggling artist. Within communism however, the artist would have her/his needs provided for, while providing their art to society. It’s really quite a simple solution – it just takes a complete overhaul of our abhorrent system.

  • Aydo 28 days ago #
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    Such utter bullshit.

    Reply
  • Cillian Dore 28 days ago #
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    Funny how when the Internet is starting to become a tool by which activists are using to make there voice heard, all of a sudden legislations are being brought out by governments to restrict the freedom of it.

    Reply
  • Neil Richardson 28 days ago #
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    I really wish Google and Facebook and the other large corporations whose interests aren’t being served by this legislation would pick up the phone and say “eh, if that goes through, we’re looking for a new European HQ – tell that uppity little muppet to stop trying to make a name for himself and get back in his box.”

    Reply
    • Liam Byrne 28 days ago #
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      Unfortunately Neil, that’s all it would take. Sherlock would soon get some f**king sense.

    • Noddy Mooney 28 days ago #
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      What century are these moron’s living in? The knowledge economy. Ireland as a hub for cloud computing. How the f*ck are we to be taken seriously when our government don’t seem to be able to grasp the fundamental ethos of the internet. If this shit goes through we can kiss goodbye to google, facebook, youtube etc. as future employers.

    • Noddy Mooney 28 days ago #
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      And why should they pick up the phone? They’re in the business of making money and can make it just as easily elsewhere, which they will do if driven out by the idiots in government.

    • Charlie Melia 28 days ago #
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      Hide your IP and use proxy servers… These guys havent a notion how the internet works… It’ll take them years to figure it out…. I love the new mantra of the fiannagaelabour party though. “Its the same in all other european countries” sounds close to “we’re the only country in europe without a home tax”…. Everything is either fianna fails fault or europes fault… They can’t take responsibility for anything… Worst puppet government we’ve ever had

  • Thomas O'Duffy 28 days ago #
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    Lets be clear:

    It is grossly “out of balance” and out of kilter with natural justice that conglomerates of deep pocketed rights holders pay lobbyists and law firms to literally sculpt an economic context where they profit more, at the expense of a plethora of services.

    As Tim O’Reilly said: “Please don’t write laws that protect 19th century industries against 21st-century disruption!”

    Arguably, based upon the logic of this bill, electricity providers have played a part in “copyright theft” by providing energy to homes and ISPs. Are whole families electricity supplies going to be cut off so that giant media companies can get their way?

    When are our politicians going to wake up and realise that in the digital realm, scarcity does not exist. A song can be replicated infinite times and everyone on the planet can listen to it. When there is infinite supply, only monopolistic models allow high prices. We need economic models that fairly reward creators of great content based upon the usage of such, not means to block people from accessing information so that greedy middlemen can aggregate more power.

    If scribes had their way in the 15th century, Guttenburgs printing press may never have made it, and we’d all be still be living in the dark ages. These new laws are a modern equivalent to blocking the printing press by inhibiting the free flow of information.

    Reply
  • Matt Crosbie 28 days ago #
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    Imagine voting out fianna fail but EVEN WORSE, voting IN the blueshirts! Bet you guys are happy now!
    get these blueshirt fuckers out!

    Reply
    • Ryan Allen 28 days ago #
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      You missing FF already? Oh and Sean Sherlock is Labour, bright spark!

    • Matt Crosbie 28 days ago #
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      Ryan, you really are a tard. First of all, it’s SARCASM. Second of all, labour wouldn’t be in there if it weren’t for a Fine Gael majority coalition. Troll elsewhere or just simply, THINK for a change.

  • Anna Larsen 28 days ago #
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    I don’t understand why EMI brought the suit against UPC here in Ireland – UPC is a Dutch company (and a global one too) and if, as Sherlock is saying, the copyright laws are already in place everywhere in Europe, why didn’t EMI file its lawsuit everywhere else – in every European country and even the rest of the world (UPC even has the US presence as Liberty media)?

    Reply
  • Nick Long 28 days ago #
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    The Internet should be free from political interference, whats going on here is some international thinktank told the governments the possible future use of the Internet, money and profit is to be made and to stop people from getting entertainment for free they need new laws to restrict the peoples means to access it through piracy, the Internet is not only for tv shows and movies its a enormous tool to the development of the human race, and because of these grossly unsuitable leaders that don’t have the foresight to see this we might lose the most valuable tool since the invention of the printing press to money and greed. Its a very sad day if this gets passed into law.

    Reply
  • Thomas O'Duffy 28 days ago #
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    Creating any legal context where a persons internet access can be revoked is as savage as blinding a person because they looked at something, that according to a third parties preferences, they were not supposed to.

    Just as glasses allow a person with poor eyesight to see (including that which may be copyrighted material), so too will an internet connection allow a person to access information of all kinds in the future (including that which may be “copyrighted material”).

    If you think it is disproportionate that a media company can make someone blind for watching something they can argue is “copyrighted”, it must be disproportionate to have any legal basis for kicking someone off the internet, which will “digitally blind” them.

    If we halved the age of all the people making these decisions, we may have people who actually knew what they were talking about, instead of senior partners who have to get their kids to help them sync their blackberries with their laptops. Instead, they make recommendations when their kids know more than they do.

    Reply
  • Seamus Ryan 28 days ago #
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    I posted this on facebook but rather than keeping it hidden there…

    He’s incorrect and clearly doesn’t understand the actual effect of the statutory instrument that he’s proposing. What’s worse is that his advisors and department mandarins clearly don’t understand it either.

    A Dáil discussion probably adds very little – it’s a statutory instrument so doesn’t need a vote. And, unfortunately, I suspect that the other side (half made up of idiots, after all) doesn’t understand the effect of the SI either. The principle of proportionality is broken under this SI. Copyright holders will have the right to push their powers under the new law to the absolute limit, making this effectively an Irish SOPA. There is no requirement for affected parties to be given notice of an application to block them. In the absence of actual requirements for a blocking application, it creates a vague system whereby continued Internet access and hosting will be in the jurisdiction of individual judges, placing ISPs and content providers in a position where the goal posts are arbitrary. Hence, it short-circuits the democratic process and places an unfair burden of guesswork on people. Above all, it creates an intolerable uncertainty on content providers and individual citizens.

    It’s a badly constructed statutory instrument, introduced without sufficient oversight and without sufficient safeguards, written by people who fundamentally misunderstand its effect. Sean Sherlock’s email is sean.sherlock@oir.ie and Richard Bruton’s (as the senior minister) is minister@deti.ie

    Reply
  • Ste Whistler 28 days ago #
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    I literally can’t understand why anyone would want this!! It seems as if the people putting this in place aren’t really sure what the hell they’re doing in the first place.. I have feeling that if this gets passed, it’ll be undone when they get home and the kids of these people who thought of this ridiculous act are being arrested

    Reply
  • TwitDublin 28 days ago #
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    Total crap tell them to f off! This is record companies lobbying govt with cash. File sharing is our right.

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  • Patrick O'Brien 28 days ago #
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    Oh dear, the man responsible for passing legislation on the internet doesn’t even know what ISP stands for… clue, it’s not Information Service Provider…

    Reply
  • Donncha Burke 28 days ago #
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    Can we not mould the EU directive or is it like the Soviet Union imposing rule on its weak dominions? Can we not say no, or propose alternatives? How do these nasty crippling, authoritarian sounding directives work?

    Reply
  • Adam Beere 28 days ago #
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    The services provided by the ISP’s in Ireland are an absolute joke!
    Eircom failed to roll out broadband in a sufficient manner, UPC can only cater to new and upgraded areas of populous and the national broadband scheme did little to improve the situation.

    I barely trust them to continuously provide the measly 3MB speed I can get currently, let alone my right to access it!

    Reply
  • Dominick Donnelly 28 days ago #
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    Sean your father Joe will turn in his grave over this. Stop being the lackey of very big business.

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  • John Ó'Ríordán 27 days ago #
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    Might I suggest everyone spends 5 minutes looking at this great Video on ACTA which explains everything in terms we can all understand? A far as I understand Seán Sherlocks legislation does pretty much the same thing here in Ireland. Not that it matters when ACTA comes into force.

    http://www.youtube.com/watch?v=N8Xg_C2YmG0

    Reply

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