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#StopSopaIreland, Keyboard Warriors and 86 Questions: Updating Irish Copyright Law for the 21st CenturyRónán Kennedy, 3 July 2012
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2005: Direct actions against individuals
• EMI v. Eircom [2005] IEHC 233
• Music industry sought Norwich Pharmacal orders
• Costs in three cases €680,000
• Received in settlements €80,000
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2009: IRMA v Eircom
• Settled after 8 days at hearing
• Eircom agreed to “3 strikes” policy
– provided it was in compliance with data protection law
• IRMA to seek similar policy from other Irish ISPs
• IRMA obtains court orders blocking access to Pirate Bay website
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“Three Strikes” Policy
1. The first warning would be a notification of an infringing download with a subscriber’s bill.
2. The second warning would be a formal warning letter.
3. The third warning would involve a review of the evidence by a person (the previous two steps are automatic), which could end in the issuance of a termination notice, after which the subscriber would have 14 days to put forward extenuating circumstances or have their service cut off.
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2010: Data Protection Commissioner intervenes
• … and is not represented as has no indemnity for costs
• Three issues:
– 1. Are IP addresses “personal data”? No
– 2. Is disconnection a “prejudice to fundamental rights” (section 2A DPA)? No
– 3. Are P2P IP records “sensitive personal data”? No
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Difficulties
• IP addresses as “traffic data”? “location data”?
• Legality of interception of communications?
• “Theft” of copyrighted material?
• S 8 DPA: Any restrictions in this Act on the processing of personal data do not apply if the processing is—
– … ( d ) required urgently to prevent injury or other damage to the health of a person or serious loss of or damage to property …
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Phonographic Performance Ireland Ltd. v. Cody [1998] 4 IR 504
• Keane J: “The right of the creator of a literary, dramatic, musical or artistic work not to have his or her creation stolen or plagiarized is a right of private property within the meaning of Article 40.3.2° and Article 43.1 of the Constitution of Ireland, 1937, as is the similar right of a person who has employed his or her technical skills and/or capital in the sound recording of a musical work. As such, they can hardly be abolished in their entirety, although it was doubtless within the competence of the Oireachtas to regulate their exercise in the interests of the common good. In addition and even in the absence of any statutory machinery, it is the duty of the organs of the State, including the courts, to ensure, as best they may, that these rights are protected from unjust attack and, in the case of injustice done, vindicated.”
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2010: EMI v UPC
• Section 40 CRRA 2000:– (3) Subject to subsection (4), the provision of facilities for enabling
the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
– (4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.
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Difficulties
• Policing network traffic while remaining a “mere conduit”?
• “Stealing” copyrighted content?
• Other human rights: privacy, free expression?
• Legality and reliability of interception
• “Fair dealing” defences?
• Responsibility of UPC to shareholders or stakeholders?
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2011: Moves to Close the Gap
• April: (Unfounded?) rumours of new statutory instrument
• June: Public consultation on new statutory instrument• “… there is no change of policy being put forward in the proposed
legislative measure. It is merely a restatement of the position that was considered to be in place before a High Court judgment of Judge Charleton in October 2010. Ireland is obliged to provide that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third part to infringe a copyright or related right.”
• Minister meets with stakeholders
• December: Music industry sues Ireland
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2012: The Debate Heats Up
• January: #StopSOPAIreland campaign launches
• 80000+ signatures to petition
• Anonymous attack Irish government websites
• Pledge Day: Voters visit TDs
• Voters call Minister Seán Sherlock
• April: Minister refuses to share podium with StopSOPAIreland; later relents
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Emergency Dáil Debate (31 January 2012)
• Willie O’Dea TD: “We are abdicating responsibility to the Judiciary. While I have confidence in judges, I do not know the extent to which they will be persuaded by the principles of European law.”
• Martin Ferris TD: “The absence of democratic scrutiny on this measure has been highlighted by critics, as has the fact that the statutory instrument, as drafted, gives too much interpretive powers to the courts.”
• Richard Boyd Barrett TD: “This is a complex issue and it has many aspects, not all of which I understand fully. However, I have been acquainting myself with them over the past week or two.”
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Emergency Dáil Debate (31 January 2012)
• Jerry Buttimer TD: “I do not envy the Minister of State his task. I have never seen so many e-mails coming in. We must differentiate between the keyboard warriors who, in some cases, border on anarchism and those who are genuinely creative and passionate about this. That is important for those who are creative or into gaming.”
• Seán Sherlock TD: “With all due respect to the Members opposite, I have taken on board the points they have made and addressed them individually. I respectfully suggest they should defer to their legal advisers. I will also defer to their legal advisers on this so that we can have a strategic conversation about how the future of the web operates in the State, but we are not changing the wording of the statutory instrument.”
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Inserted into Section 40, CRRA 2000
(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 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.
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Inserted into Section 205, CRRA 2000
(9A) (a) The rightsowner of any right conferred by Parts III and IV may, in respect of that right, 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 20011 on the harmonisation of certain aspects of copyright and related rights in the information society applies.
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Issues
• “Due regard”?
• “Likely to be affected”?
• Little guidance for courts
• Uncertainty for innovators and ISPs
• Contravenes Scarlet v SABAM/SABAM v Netlog?
• Uses SI to modify primary legislation
• Anti-democratic process
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May 2011: Copyright Review Committee
• Members:
– Dr. Eoin O’Dell of Trinity College, Dublin as chair
– Professor Stephen Hedley of University College Cork
– Ms. Patricia McGovern of DFMG Solicitors
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Terms of Reference
• Examine the present national Copyright legislation and identify any areas that are perceived to create barriers to innovation
• Identify solutions for removing these barriers and make recommendations as to how these solutions might be implemented through changes to national legislation.
• Examine the US style fair use doctrine to see if it would be appropriate in an Irish/EU context.
• If it transpires that national copyright legislation requires to be amended but cannot be amended, (bearing in mind that Irish copyright legislation is bound by the European Communities Directives on Copyright and Related Rights and other international obligations) make recommendations for changes to the EU Directives that will eliminate the barriers to innovation and optimise the balance between protecting creativity and promoting and facilitating innovation.
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CRC Public Consultation
• May 2011: Call for Submissions (over 100 received)
• February 2012: Consultation Paper Published
• March 2012: Public Meeting
– Online questionnaire via Survey Monkey
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CRC Consultation Paper
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Significant Questions
• (6) What is the proper balance to be struck between the categories [of copyright users] from the perspective of encouraging innovation?
• (7) Should a Copyright Council of Ireland be established?
• (13) Should the Council include the establishment of an Irish Digital Copyright Exchange (Exchange)?
• (24) Is there, in particular, any evidence on how current Irish copyright law in fact encourages or discourages innovation and on how changes could encourage innovation?
• (45) Is there any good reason why a link to copyright material, of itself and without more, ought to constitute either a primary or a secondary infringement of that copyright?
• (77) (b) … should the Irish government join with either the UK government or the Dutch government in lobbying at EU level, either for a new EUCD exception for non-consumptive uses or more broadly for a fair use doctrine?
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Data Protection Commissioner stops “three strikes”
• Eircom pushing for “three strikes”
• Dec 2011: Data Protection Commissioner issued enforcement notice against Eircom halting three strikes policy
• May 2012: Music Industry sues DPC in Commercial Court
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2012: EMI v Data Protection Commissioner
• “It is obvious that the Data Protection Commissioner, having an important role by statute, ought to be properly and appropriately funded to take part in litigation that is central to the functions of his office. It is wrong that he was not so funded by those responsible.”
• “It is with a degree of concern that the Court immediately notes that the Data Protection Commissioner does not accept that the mistake by Eircom in adjusting clocks was then in the past. It is neither legally right nor fair that an error can give rise to a command over a year later to cease an activity when that error has long since been corrected and where there is no indication that it would ever be repeated.”
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2012: EMI v Data Protection Commissioner
• “Where questions of the balance of policy in specialist areas, or findings of fact requiring expert assessment, are concerned, then the courts should not readily find that findings of fact are irrational or that the balance struck between competing interests fails to accord with fundamental commonsense”
• “… the activity of peer-to-peer uploading and downloading of copyright material was a marketplace transaction which could not be distinguished from a trader going and standing on the side in Henry Street in Dublin city centre with a box load of DVDs that were copied illegally and offering these to anyone who might come along. … An activity of swarm participation for peer-to-peer downloading does not legitimately carry the expectation of privacy.”
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2012: EMI v Data Protection Commissioner
• Case C-70/10 Scarlet v SABAM
• Case C-360/10 SABAM v Netlog
• Dramatico v Sky [2012] EWHC 268 (Ch)
• Twentieth Century Fox v BT [2011] EWHC 1981 (Ch)
• Golden Eye v Telefónica UK [2012] EWHC 723 (Ch)
• Roadshow Films v iiNet [2012] HCA 16
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2012: EMI v Data Protection Commissioner
• “It is clear that the absence of reasons in the Data Protection Commissioner’s notice vitiates its validity.”
• “During the course of this hearing, no one could definitively say what the scope of the appeal from the Data Protection Commissioner to the Circuit Court was. No one could definitively say what if anything would satisfy the Data Protection Commissioner in his concerns apart from abandoning the protocol. Both Eircom and the recording companies have an entitlement to an adjudication by the Data Protection Commissioner in accordance with law. This has not occurred. Judicial review is therefore a proper remedy.”
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2012: EMI v Data Protection Commissioner
• “The regulation of the internet draws forth diametrically opposed views. ... Creativity is the engine of the arts industry which brings us new insight and refreshment of the mind in the form of cinema and music. Copyright is no less important than any other intellectual property right. Protection of creativity is central to the law of any sound economic system. ... A creative artist desperate for sales of her recorded songs, or an inventor wishing to protect a patent that is the result of years of committed research, may not see the use of the internet as the medium for the breach of their rights as an automatic answer to appropriate legal regulation.”
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Further Reading
• Kennedy, No Three Strikes for Ireland (Yet): EU Copyright Law and Individual Liability in Recent Internet File Sharing Litigation. (2011) 12(10) Journal of Internet Law 15–31.
• Copyright Review Committee Consultation Paper, http://www.djei.ie/science/ipr/crc_consultation_paper.pdf
• Stop SOPA Ireland website, http://stopsopaireland.com
• EMI v Data Protection Commissioner 2012/167JR (High Court 27 June 2012)
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