When Irish ISPs aren't smiling

The mainstream news media in Ireland have been devoting an unusual amount of space to a proposed amendment to the Copyright and Related Rights Act, 2000. The amendment will provide copyright owners with the explicit right to obtain an injunction against an intermediary, such as an internet service provider, despite that intermediary's normal exemption from liability as a mere conduit.

It is sometimes hard to pin down exactly why one story grabs media attention and another fails to make a splash, but in this case the IPKat suspects that the publicity can largely be attributed to savvy marketing by opponents of the amendment. Upon seeing the attention given by the world's media to the blacking-out of the English Wikipedia site last month, Irish digital activists promptly dubbed the proposed new amendment to Irish copyright law "Ireland's SOPA" or "SOPA Ireland". The name stuck, and struck a resonance with reporters and editors, who promptly placed the story on their front pages and at the top of the news reports.

Leaving aside the question of whether the name is a clever piece of media manipulation or an accurate comparison with the Stop Online Piracy Act (hint: it's more the former than the latter, once you scratch the surface), why are many well-informed commentators and critics so opposed to this amendment, which has been strongly opposed by ISPAI, the umbrella group representing internet service providers (ISPs)

Down with this sort of thing. Careful now.

There are a few reasons for opposition, the strongest being firstly because it's being introduced by ministerial order (statutory instrument), rather than being fully debated through the Oireachtas (Ireland's legislature) with due parliamentary process; and secondly, because the published proposals are seen as being dangerously vague, allowing for injunctions to be granted against a wide class of intermediaries, not just ISPs, and not just to block particular works or sites. The parties injuncted are not guaranteed to be given any notice or the right to appear in court, and there are no criteria being laid down as to what factors a judge must take into account when deciding to grant or refuse an injunction.

The background to this story is a series of cases taken by the major record labels against Ireland's largest ISPs, namely Eircom and UPC.

In the litigation with Eircom, the ISP settled the action by agreeing to impose a "three strikes" mechanism upon its own customers who were accused of illegal downloads. Around the same time, Mr Justice Charleton granted an unopposed injunction against Eircom, forcing them to cut off all user access to the Pirate Bay website.

Charleton J., whose appearance on
this blog should not pass without noting that
"Judge Charleton" is an anagram of
"Jungle Cat Horde"

Emboldened by their easy successes, the record labels turned in pursuit of UPC, the next biggest ISP in the Irish market, and again ended up before Charleton J. They sought injunctions to force UPC to implement various technical solutions to block unauthorised downloads of their catalogues. Despite the judge expressing an evident sympathy for the copyright holders, he held himself unable to grant the requested injunction against UPC, and also held that he had been wrong in granting the Pirate Bay blocking injunction against Eircom.

Importantly, however, the only reason he held himself unable to grant the injunctions was because Ireland was, he held, in breach of its obligations under the EU Copyright Directive (2001/29/EC). And it was this finding that forced the hand of the Irish government.  

Article 8(3) of that Directive provides that:

" Member States shall ensure that rightholders 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."

Although the government said it had always believed that injunctions were available according to the normal rules of equity and the existing provisions of the Copyright Act, it felt bound to respond by legislating to remedy a deficiency once this was the subject of a finding by a High Court judge.

When the legislation had failed to materialise by the start of this year, the major record labels rather helpfully sued the Irish state, in what was reported to be an attempt to hasten the promised legislation,  and possibly also to add some backbone to the parliamentary draftsman, and avoid any watering down of the legislation.

The timing of this court action, and of the government responding with details of the proposed solution, were inauspicious, coming as they did in the midst of the furore over SOPA in the USA. The proposed amendment was to add the following subsection to section 40 (with a corresponding provision for performer's rights):

(5A)       (a) The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies.

                (b) In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances.

(In fact, details of this proposal had been in the public domain since last summer, but they received little or no attention at the time. And anyway, that's the sort of detail that ruins an otherwise perfect story arc.)

The logo of the No SOPA pledge campaign,
 which hoped to rally supporters to visit
their parliamentary representatives
in person to lobby opposition
to the copyright amendment

Reaction was immediate. Online campaigns were organised. Media outlets were contacted about SOPA Ireland. An online petition of protest received over 80,000 signatures in days and unusually, the fine detail of copyright law was the subject of reports on the main evening news.

The Irish Times carried an opinion piece by the digital rights activist and academic, TJ McIntyre, who set out the main criticisms as mentioned earlier. Another heavyweight contribution appeared in last weekend's Sunday Business Post, which carried an article written by Senior Counsel John Gordon, arguing that the legislation was unnecessary as a matter of law (behind a paywall, but quoted liberally by TJ here).

In spite of all this, the relevant Minister, Sean Sherlock, is reported to be determined to bring in the legislation by statutory instrument, in the terms set out above and with no concession on the requests made by critics of the proposal, and a decision along these lines is expected imminently.