Copyright law should help rather than hinder Ireland

NET RESULTS:FOR THREE governments in a row, "short-sighted" and "sneaky" seem to have become the relevant terms in operation when bringing in controversial, high-impact legislation on digital issues.

In the past, from the government’s perspective, this approach has worked well in shoving in poorly drafted, unscrutinised law on the controversial area of data retention, giving the Republic one of the most severe, internationally criticised, anti-business retention regimes in the world.

This time around, the Government is trying again to use secondary legislation – a statutory instrument requiring no discussion and no debate in the Oireachtas – to (supposedly) protect intellectual property for a narrow band of hard-lobbying entertainment industries.

Once again, as happened with data retention, the Government intends to force this into place undemocratically, without debate, as a fait accompli.

Ironically, this wrong-footed move, which the State misleadingly claims it must do to harmonise Irish legislation with EU law, comes just as the US Congress shelved similar, highly controversial legislation in the face of a massive public and business outcry – the Stop Online Piracy Act (Sopa) and Protect Intellectual Property Act (Pipa) Bills.

Ironically again (talk about mixed messages), the Irish legislation is being pushed forward even as the Government prepares a much-needed and overdue overhaul of copyright law. Ministers and the Taoiseach have signalled that the State will take groundbreaking steps to make Ireland one of the more cutting-edge and creative international copyright jurisdictions. Which is it to be?

Disappointingly, it is Minister of State for Research and Innovation Seán Sherlock – one of the only TDs to have any grip at all on technology issues – who is championing the proposed intellectual property legislation, intended to let the music industry force internet service providers, and perhaps other sites, to shut down access to websites that the music folks think are being used for piracy.

This is the same industry that had to be dragged kicking and screaming into the digital era by Apple’s Steve Jobs when it collectively stuck its head in the sand for years rather than recognise that the internet meant business was not going to be just like 1975 any more.

This is the industry that, for more than a decade as the Internet became ubiquitous in almost every household in the US, Britain and Ireland – offering unprecedented ways to access audiences, sell music and promote artists – clung to the idea that the overpriced CD was the once and future king.

It is the industry that has pursued teenagers in court for illegal downloading, rather than looking for new and creative business approaches to sell to that market.

Suing 16-year-olds might be bizarrely gratifying for a while, especially if you don’t have any better ideas and need people in the technology industry to think them up for you before you completely fade into irrelevance. But there comes a point when someone besides a phalanx of intellectual property lawyers is going to need to act.

As critics including law lecturer and Digital Rights Ireland chairman TJ McIntyre have pointed out, legislation such as that which is currently proposed not only sets a worrying precedent that allows one (old, slow-changing) industry to boss another (new, constantly evolving) one around. It also has every sign of forcing access restrictions on some of the internet’s biggest companies (and, in many cases, major Irish employers), such as Facebook, Google, YouTube and Twitter.

How the Government can go about wooing such companies to base themselves here and hire Irish workers, while at the same time imposing laws that hobble what they do, is surely a question that needs open Oireachtas discussion.

It’s not that anyone is arguing for piracy; it’s that these poorly conceived anti-piracy proposals cast a clumsy net so wide, and concede so much to powerful rights holders, such as the music and film industries, that innocent sites could be turned off (including those of legitimate businesses and individuals), and the benign or creative use of music, text and images could be curtailed.

Ridiculously, a more open approach for such uses is actually strongly argued for in proposals before the committee considering changes to broader Irish copyright law.

But more importantly, there is evidence (from numerous mainstream studies and reports) that industry claims about piracy decimating revenue, jobs and creativity are vastly overstated. A careful analysis of such claims by Julian Sanchez on Ars Technica ( iti.ms/wT8l02), picked up and further discussed by Forbes( iti.ms/xQJXhg), indicates piracy has actually had only a minor impact on these industries.

The record industry in the US, for example, has about double the new releases it had a decade ago, when piracy was barely on its radar. The film industry also has more releases now than in pre-piracy days and its most pirated movies are also those that made staggering box office profits. Sanchez cites evidence that the music industry is making back profits lost to piracy through “complementary purchases” such as concert tickets. And a recent report issued by a US anti-piracy lobby group rather farcically indicates its clients are doing quite well, thank you.

“[The report] actually paints a picture of industries that, far from being ‘killed’ by piracy, are already weathering a harsh economic climate better than most, and have far outperformed the overall US economy through the current recession,” Sanchez writes.

So before Sherlock and this Government try to forcibly impose an Irish Sopa, with potentially damaging economic consequences on a nation trying to create jobs in many of the sectors that would be harmed by such a move, can we step back from the brink?

Rather than create a great big mess, we need to halt the current legislation, wait for the pending copyright law overhaul to be completed, and create a new copyright landscape that helps rather than hinders Ireland, its businesses and its creativity.