IF THE furore about Enda Kenny’s remarks in Davos shows how distorted political discourse has become in this country, the onslaught faced by a Minister of State, Seán Sherlock, online and offline, over his plans to enact an amending regulation to Ireland’s copyright law borders on the absurd.
At the heart of the controversy about Sherlock’s proposals is a conflict between those who argue for an unregulated internet and those who contend that our online world, like our world generally, needs some level of policing and regulation.
At one end of the spectrum is the view that there should be no private rights online (copyright or otherwise) and that internet users should be able to say and share whatever they like irrespective of whether it is sourced or stolen from someone else. This view argues that any attempt to curtail what might be on the internet limits its growth and effectiveness. Like the original frontiersmen of what became the American Wild West they see the internet as entirely benign.
The internet is magnificent. It has positively transformed so many aspects of our lives not least because it has enabled quantum leaps in the extent of information exchange and human interaction. The internet has also, however, become the venue and means for much illegal, dangerous and socially destructive activity. Increasing, if unquantifiable, chunks of internet activity is devoted to pornography, online gambling, illegal trade in prescription medication and large-scale music and movie piracy.
Some internet space is also devoted to abusive reportage and comment. Seán Sherlock has been subjected to much of this in the last few days because he is the Minister required to tidy up an aspect of the copyright law left unclear by a High Court judgment in 2010.
While the offline comment about Sherlock’s plans has been more restrained, it has not been helped by the fact that many of those contributing are either technologically or legally illiterate as to what he is proposing, while many of those more expert in the area are advocates for almost unbridled freedom on the web.
What Sherlock is at is no more than providing a clear legal entitlement to seek an injunction to protect copyright on the internet. It is, of course, a restriction on internet activity but only on illegal internet activity and one which it had been assumed already existed in Irish law.
In 2010, EMI sought an injunction to require UPC to block a prominent music-sharing site from using their internet service. In his High Court judgment in that case Mr Justice Charleton held that the music industry was being “devastated by internet piracy” which, as well as costing the industry about €20 million a year, was also ruining “the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living”.
He accepted evidence, for example, that 22,000 separate illegal downloads had been made of tracks from Aslan’s last album.
Charleton also found that internet service providers were not only aware of this illegal activity but were knowingly profiting on a large scale from the use of their services for it.
Charleton found a clear basis in the evidence for granting the injunction sought by EMI. After a comprehensive review of the relevant provisions of Irish and European law, however, he held that the 2000 Irish Copyright and Related Rights Act had not on his interpretation actually provided for such an injunction. At the time of its enactment it had been assumed that the 2000 Act included wording which gave those who could establish to the satisfaction of the court that their copyright was being infringed, the right to obtain an injunction requiring the internet service provider to stop the pirates using their internet services.
Sherlock is now enacting a regulation to deal with this aspect. It is clear from the jurisprudence in this area that any right to such an injunction would have to be balanced with other legislative and constitutional provisions including those relating to privacy, freedom of expression and access to internet usage.
In order to suggest the extent of popular outrage at Sherlock’s proposal the mainstream media have reported that almost 60,000 people have signed an online petition opposing it. On the petition website those signing the petition are asked to tick whether they are prepared to have their support for it made public. Notwithstanding this there is no published list of these supporters which makes it impossible for anyone but the site administrators to validate the individual entries, to see whether they are based in Ireland or not, or to see whether any of them “signed” the petition more than once. When I asked one of the campaign organisers yesterday for a breakdown of those publicly prepared to be on the petition I was curiously referred to the Minister’s office with my query. Interestingly RTÉ reported that only a handful of those opposed to Sherlock’s draft regulation disturbed themselves enough to turn up for a Kildare Street rally on Thursday.
The online advocates have sought to characterise this clarification of the 2001 Act as something akin to the Stop Online Piracy Act recently proposed before the United States Congress and then withdrawn. The US act was to be a dramatic intensification of protections for content owners against internet piracy. It has much to recommend it. However, its provisions are of an entirely different order to that which Sherlock is proposing in his regulation.
A good argument can be made for introducing new comprehensive primary Irish legislation in this area and for a fuller debate on the challenges internet growth presents for ownership of creative output. Such legislation won’t be easy to frame – not least because of the nastiness to which discussion on some of these points gives rise. In the meantime, Sherlock is obliged to give real effect to the law already enacted.