Copyright proposals block innovation and free expression

Wed, Feb 1, 2012, 00:00

OPINION:Ministers copyright proposals threaten digital businesses and put civil liberties at risk

LAST WEEK Minister of State for Research and Innovation Seán Sherlock published a draft statutory instrument on the enforcement of copyright. At the time of writing, over 75,000 people have signed a petition expressing concern over his proposal and asking for it to be reconsidered.

Public concern has led to the proposal being brought to Cabinet and twice debated in the Dáil, and has led to cross-party calls for the proposal to be revised. Why has this happened?

In part, the concern relates to the way in which this law is being made. By using a statutory instrument, an Act of the Oireachtas can be amended by the stroke of a ministerial pen in a way which denies the Dáil and Seanad the ability to scrutinise and amend the proposed law. This is sometimes inevitable when dealing with technical and non-contentious changes, but is otherwise undesirable.

Indeed, the programme for government contains a commitment against the use of statutory instruments, stating that “the situation can no longer be tolerated where Irish Ministers enact EU legislation by statutory instrument [and] the checks and balances of parliamentary democracy are bypassed”.

This argument is all the stronger in the present case, where fundamental rights are at stake, and where the European Court of Justice has identified a need for any legislation in this area to be “democratically legitimised”. It is disappointing, therefore, that the Minister has chosen to proceed in this way.

As currently drafted, the statutory instrument provides that the High Court may grant an injunction against an internet intermediary who is entirely innocent of any wrongdoing – but does not specify even the most basic details regarding how this power might be exercised.

What type of injunction might be granted? On what criteria? Against what types of intermediary – internet service providers, discussion forums, search engines, social networking sites, video hosting sites? Who will bear the costs of these injunctions? Who will be responsible if, as often happens, an unrelated website is wrongfully blocked?

This lack of detail makes it impossible to predict how this law might be applied, and means that clarification will come only after repeated and expensive trips to the High Court.

The Internet Service Providers Association of Ireland (whose members include Google) has opposed the legislation, noting the proposal creates “business uncertainty for those running or considering establishing internet services from Ireland” in a way which may have “drastic consequences” for them: in short, it will act as a deterrent to the next generation of Irish internet businesses which may relocate to warmer legal climes. Significantly, the Department of Enterprise has not produced a Regulatory Impact Assessment of the measure.

The statutory instrument is being introduced in response to the music industry litigation in EMI v. UPC. It seems intended, at a minimum, to respond to the music industry demands in that case for blocking of internet sites.

It is clear, however, that such blocking systems create significant collateral damage to lawful speech while at the same time failing to achieve their intended goals. As UK regulator Ofcom recently noted: “For all blocking methods, circumvention by site operators and internet users is technically possible and would be relatively straightforward by determined users.”

Consequently, such blocking systems would be neither a necessary nor proportionate restriction on freedom of expression online, as required for compatibility with the European Convention on Human Rights.

The flaws in this legislation are all the more surprising considering the strong track record which the department and Sherlock have on copyright issues generally. In particular, by establishing a Copyright Review Committee to consider the reform of Irish copyright laws, the department has helped to put Ireland at the vanguard of European developments. This statutory instrument is a retrograde step which undermines the good work done elsewhere.

Given that there is now cross-party support for the Minister’s proposals to be revised, it must be hoped Sherlock will amend his proposal.

TJ McIntyre is a lecturer in the UCD school of law, solicitor, and chairman of Digital Rights Ireland

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