Copyright Statutory Instrument *Update
February 3, 2012
The Cabinet are due to discuss the S.I. on Tuesday 7th Feb. ISPAI issued the following Press Release to explain why we believe introduction of the Copyright S.I. will have a detrimental affect on ISPs and the location of innovative Internet services and the jobs they would otherwise bring to Ireland.
The Simple Reasons Why ISPAI Members are Against the Copyright S.I.
There has been a lot of rhetoric about the Government’s S.I. to amend the Copyright and Related Rights Act, 2000. Extremes have ranged from outraged cries that it will end free speech, to dry and incomprehensible monologues on intricacies of Irish law versus European Directives. The Internet Service Providers Association of Ireland (ISPAI) has come out strongly against this S.I. but for very practical and simple business reasons.
The background put very simplistically is that the music industry failed to secure an injunction in the Irish courts in 2010 against UPC, one of the larger ISPs operating here. In his judgment Mr. Justice Charleton interpreted that Irish law did not give him the means to grant the injunction which the plaintiffs sought because the European Directive had not been fully transposed and referred this back to the government to introduce clarifying legislation.
It is a matter of opinion as to whether this is really needed and certainly in the decade since the Directive, the European Commission, who is responsible to ensure compliance with Directives hadn’t picked up on it. However, Minister Sean Sherlock is now introducing a quick fix by using an S.I. rather than primary legislation. This is made more urgent because the music industry is now suing the State for lost revenue due to this perceived omission – expecting the tax-payer to cough up again – and we understand the government must respond during next week. The problem is Minister Sherlock’s quick fix is far too broad, offers no clarification, simply cites the EU Directive and effectively throws interpretation back to the courts.
The reason that this seeming legal technicality is so important is it directly impacts on our already suffering economy and difficult trading conditions. Ireland has secured many large international online businesses to locate here. There are also many successful indigenous online companies servicing international markets. Together they account for a sizeable chunk of our export revenues. These companies utilise the Internet infrastructure of our members as do the Internet using public. The ISPs and many of these online service companies have business built on handling data or content belonging to other people. The whole sector is very buoyant, provides many thousands of jobs in Ireland and is bucking the recessionary trends.
But this S.I. now hangs like a dark shadow over the industry because, once signed, it copper-fastens that the courts should decide on a case by case basis the remedy for claims of copyright infringement – done by third parties – and whether the remedy should be to force the operators by injunction to prevent infringement (by others) occurring on their services.
“Essentially this means establishing technical blocking measures against websites, parts of websites or other Internet services that mostly aren’t even in this jurisdiction”, says Paul Durrant, ISPAI Manager. “Though it is easy to say, it can only be achieved by complex technical interference with the fundamental systems that keep Internet up and running.” Not only is it costly, it also puts ISPs into an impossible position, on one hand legally required to maintain privacy of communications and on the other somehow supposed to be able to extract copyright infringing traffic. In addition the vast quantity of music tracks and films against which traffic would have to be checked would probably grind the Internet to a halt, affecting all the online services on which we have come to rely.
ISPAI has always been clear that it is against the use of its networks for sharing or illicitly obtaining copyrighted music and other works without having permission or paying the appropriate royalty. However, we have no way of controlling the content that people choose to transmit over our networks and no way of knowing whether something is pirated or not.
We have always maintained that the right way to go about stopping copyright infringement is for the owners to go after those who are actually doing the piracy – that is deliberately operating services that allow people to find and obtain pirated copies. When done, this is most effective and the recent closure of Megaupload, if the charges are upheld in court, shows how evidence can be gathered and the persons responsible prosecuted and assets seized.
The S.I. has enormous implications for the Internet industry here because it opens companies operating in this jurisdiction up to test cases that may set a precedent for the entire EU. It might be asked, why was such a small market and population as Ireland used by these international rights-holding companies? It would seem if European law actually allows for the kind of injunctions they sought, then why wasn’t this case taken in Germany where just one injunction against a large ISP could supposedly prevent many times more people from accessing pirated music than if they got injunctions against every ISPs in the whole of Ireland.
“Unfortunately”, concludes Durrant, “it is a simple fact that uncertainty in any market is not conducive to business investment. Would you locate your new online business here, or if you are an international venture capitalist, invest your money on innovative online business start-ups in Ireland?”
Most ISPs here don’t have the deep pockets to defend an injunction action taken in this country. The only option is to cave in to the injunction and take the cost of implementing the technical remedy which would have to be passed on to customers. This can also backfire as customers suffering from inevitable collateral damage will sue you for your trouble and probably leave you due to increased monthly charges. Either way it’s a recipe to kill off innovative online businesses in Ireland. What makes this so sad, is the government is trying to tell us that at the same time, that they see Ireland as a hub for cloud computing services, which by definition are services hosting other people’s content and more than other online businesses exposed to the vagaries of this S.I.
For further information phone ISPAI on 01-2945280