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Dublin: 10 °C Tuesday 22 October, 2019
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WE LIVEBLOGGED the Dáil’s debate this evening on controversial proposals for new legislation on online copyright. Here’s how it panned out:

The debate is due to get underway shortly and the time allowed for the debate has been extended from 50 minutes to 80 minutes.

While we’re waiting for things to kick off, here’s a video of last week’s 15-minute discussion on the issue in the Dáil.

The Stop SOPA Ireland online petition campaigning against the proposed legislation has built up over 77,400 signatures by now. The site also has a SOPA Bingo game for anyone wishing to add a competitive element to the debate this evening.

Here we go…

Sean Sherlock: I fully subscribe to the freedom and the opportunities the internet provides.

Sherlock: Ireland is very proud of its intellectual laws that are seen as reasonable and proportionate around the globe.

Sherlock is reviewing the EMI v UPC ruling now as background to the new proposals.

Copyright directive and the enforcement directive hold that the holders of copyright are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe on copyright.

I fully acknowledge that this is a very sensitive issue, we seek to find a balance between copyright holders, intermediaries and users, says Sherlock.

After consultations with the AG, Sherlock says his dept launched a consultation involving Google, Vodafone, UPC, EMI, O2, copyright groups and ISPs. It received over 50 submissions from interested parties.

National courts must strike a fair balance between protection of copyright and the protection of individuals, says the junior minister.

Sherlock’s being hurried along in his statement now because of time constraints…

Sherlock says he’s stressing that a regime feared by opponents to the legislation could not be possible under EU law, given EU protections of human rights.

Sherlock now being advised that he’s gone over time and things must move on.

He’s being allowed to finish his speech, but the time for questions will be a bit shorter.

Following the advice of the former and current AGs, Ireland must ensure copyright holders can pursue injunctions against intermediaries, says Sherlock. An intermediary is an ISP who provides mere conduit, caching or hosting services online.
For example, Boards.ie could be considered an intermediary, says Sherlock, but an injunction can’t be taken out against the site if it follows notice and take down procedures.
Any remedy applied for copyright infringements will have to be proportionate, and allow users access to the courts while protecting the rights of citizens.
Every EU country has to ensure that rights holders ar in a position to apply for an injunction against intermediaries. That law being around for ten years hasn’t restricted the development or use of the internet, he says, but rather the internet has flourished.

FF’s Willie O’Dea calls for a select sub-committee to discuss the proposed legislation, says that this isn’t the way to comprehensively deal with it.

O’Dea says that legislation coming from the EU directive which should allow for injunctions on copyright issues was tested before the courts, but the courts found that it wasn’t transposed correctly into Irish law.

There’s an argument to be made that judicial discretion is best to deal with an evolving situation, but in a matter of this importance the fundamentals should be laid down by the Irish parliament, says O’Dea.

There’s a bigger picture here, says O’Dea, as the EU directive is ten years old and a lot has changed in the meantime. He says that piracy has fallen in the US since systems were introduced allowing people to download things for “a modest fee”. However, there’ll always be people who opt for the illegal system, he concedes.

Martin Ferris of SF says that this debate will be meaningless if the minister goes ahead and signs the order; instead it should be brought before the Dáil.

The absence of democratic scrutiny on this measure has been highlighted by its critics already, says Ferris, and it gives too much interpretative power to the courts.

Ferris says those who are knowledgeable about the arena believe that much of the value of the internet will be lost if this order and ACTA go through.

There are people who profit from online piracy, most of what’s uploaded and downloaded is done on an individual bases, so there must be a way of tackling widescale piracy in a better way, he concludes.

Ind TD Stephen Donnelly says he fully supports the protection of copyright and acknowledges the need for legislation, but says clauses need to be added to this proposal. It could have undesired consequences, he warns, by targeting intermediaries rather than the perpetrator.

Donnelly compares shutting down websites which link to copyright infringing material to closing down sections of the motorway to stop speeding.

Many online companies are afraid they’ll be shut down, he says, and internet freedom in Ireland could be hugely curtailed.

Next up is Independent TD Catherine Murphy, who says that she also does not object to the proper exercising of EU directives on copyright law and says Sherlock is in a difficult position to oversee the task.

However, she voices concerns over the right to protect personal data which could be impacted by the granting of an injunction.

Murphy says that the copyright review committee is expected to complete their work in the summer, which would be the ideal opportunity to work on this copyright legislation.

Next up it’s the Q and A session…

First question from Liam Twomey FG TD, who asks about the impact of the proposals on ISPs.

You have to have regard to the issue of proportionality, says Sherlock. If you take the Sabam ruling, if anyone was to come before the courts they have to prove that copyright has been infringed, but the judge has to recognise the rights that exist for the individual ISP as well.

There are certain fundamental rights, he adds, before an injunction is even sought.

Richard Boyd Barrett TD is making a few short points now; he says there are strong feelings about the proposals across wide sections of society.

He’s also calling for the proposals to follow the wider process of being introduced through the Dáil in various stages to go through all the issues concerned.

Boyd Barrett says it would send a good signal for the government to lead the way in Europe in having a proper informed debate over the competing concerns of artists, musicians, copyright holders and upholding internet freedom.

Sherlock responds by saying he doesn’t believe there would by any reputational damage arising from this statutory instrument.

We are putting ourselves in the position where there is no doubt that we are compliant with EU law, says the junior minister.

The government is “not trying to impose something here”, he says.

Sherlock says that if the EU is now looking at the copyright directive, he would prefer if the community itself got together – the hosting people, the ISPs, the developers, the copyright holders – to come up with a strategic view for how we can a. legislate primarily or b. come up with volutnary agreements.

Personally, I think voluntary agreements are the way to go, he says.

Eoghan Murphy FG TD says he’s had some businesses come to him with concerns about the proposed legislation, but that other bigger organisations haven’t shown concern.

FF’s Willie O’Dea is back up and asking Sherlock if it’s his intention to go ahead now and sign the statutory instrument in the absence of any guidance from the courts over how they will exercise their power in granting injunctions.

O’Dea: Why not restrict the judge’s powers by specifying the rules under which they can grant injunctions before signing off on this matter?

Sherlock says that with sites like Boards.ie and YouTube you’ve signed up to a user agreement under which you won’t post defamatory material. And if you do, then the user can be removed. Anyone “acting the maggot” can be removed already, he says, under a voluntary code of behaviour.

The reason we’ve had to implement this SI is because the state is potentially exposed to be sued, Sherlock says.

Sherlock says that the state shouldn’t be too prescriptive, but that if a hoster decides they’re not going to take down content following a take-down notice after a real breach of copyright, then maybe it is open then for the person against whom the infringement occurs to seek an injunction.

Derek Keating FG TD asks Sherlock if his department can help allaying people’s fears over the proposals by taking out ads to address misinformation about the SI.

This is not SOPA legislation, Sherlock responds. This is balancing the rights of the copyright holder against the rights of the individual company to conduct its business.

I think people are interpreting this as us doing the bidding of the large coroprations: this is not SOPA, he says.

Sherlock says he doesn’t see this being used by big corporations to beat down websites.

The small guy, or girl, who starts getting in to the gaming industry, for example, has rights as well. Proportionality is the key to this debate, Sherlock adds.

Catherine Murphy says that there’s a lack of a grounded policy on copyright law as it relates to the internet, and that as in the alternative wording she and Donnelly are proposing there should be some boundaries set in the absence of that grounding.

It’s a potential David and Goliath situation, she warns. That small guy could be badly burned if you don’t address the issue of where the costs would lie.

Jerry Buttimer says a distiction must be made between the ‘keyboard warrior’ and those who are genuinely creative.

Buttimer says that some of the people who have engaged with him on this – and who have given him their real names – have questioned the vagueness of the SI.

Sherlock is back on his feet again

He says the government is not setting out a new policy framework, but is amending the Copyright Act; the right to seek an injunction by a copyright holder was already there, he says.

The best way of dealing with copyright infringement issues is on a case-by-case basis by means of a judicial process, he says.

The right to data protection and ISPs’ right to conduct a business also need to be upheld, he says. Rights and protections are already provided for under the courts.

Regarding the allaying of people’s fears over the proposals, Sherlock says: “I said on the record that I’m available to meet anybody and I have engaed with the media on this in as open a fashion as I have been able to do.”

Sherlock: I think individual sites, in the majority of cases, don’t overtly seek to facilitate copyright theft. If there are agreements in place between copyright holders and ISPs, then I think that might be a solution to the problem. I don’t believe we’re doing the bidding of big business becuase there as many small copyright holders on this island as well that are not superior to the other rights I have outlined on this already.

Independent TD Stephen Donnelly asks Sherlock to specify about costs: says that Boards.ie employs two people full-time on the issue of take-down notices and their view is that this could bring costs on them which could bring them down.

Donnelly says that the Internet Service Providers Association says the wording of the SI is vague and over-broad.

Donnelly questions the balance of the current statutory instrument, saying that the owners of copyright have said they’re very happy with these proposals, while the intermediaries are very concerned.

FG’s Brendan Griffin says he’s received thousands of emails about the proposed legislation. He asks what notification will be given to those suspected of breaching the law?

O’Dea is up again and criticising the vagueness of the SI, saying we shouldn’t rely on how Irish judges interpret EU directives.

Sherlock is wrapping up and thanks the deputies for their involvement in the debate (although it’s not exactly a packed house in the Dáil this evening)

Responding to Donnelly, Sherlock says that he understands that Boards.ie’s mechanism is such that you sign up as a member and then there are people who can respond to a take-down notice and remove material from the site. He says he’s fairly sure the site complies with those, and why would they not if it was going to threaten their core business?

Just because you apply for an injunction doesn’t mean the judge is going to grant you one, Sherlock says.
The government still holds that we are moving to restate a position that we already held prior to the Charlton judgment, he adds.

Sherlock: There’s an ongoing engagement with people from the internet community on how we can chart a way through the copyright issue.

He reiterates that the government feels the state is exposed to legal action over copyright.

Sherlock says he’s spoken to TJ McIntyre about the issue and he is not averse to talking to the digital rights community to hammer out a way forward, but says that the SI has to be implemented and it is being done on foot of the advice of two AGs.

Sherlock says he wants to reassure people that the govt has invested in communications and technology, and that a strategic discussion should be held on the copyright issue but that the wording of the statutory instrument will not be changed.

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