The Minister for Jobs, Enterprise and Innovation has this afternoon published controversial draft Regulations to address the perceived lacuna in Irish Copyright law, originally flagged by Mr. Justice Charlton in the case of EMI v UPC (also see Davinia Brennan's blog below for another take on this!). The draft Regulations provide for that copyright owners may seek injunctions against intermediaries (which would include internet service providers). Subsection 5A(a) to be inserted at Section 40 of the Copyright and Related Rights Act 2000, would provide as follows:
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
The draft legislation is unspecific as regards the precise nature or scope of injunction which a court might be entitled to grant as against an intermediary service provider. However, as I have previously blogged, the European Court of Justice has already stated that injunctions of the sort which oblige service providers to filter and block internet sites which are permitting unlawful downloads may not be permissible under European law.
The only guidance offered for a court in the draft Regulation is in subsection 5A(b) which states that:
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
It would appear therefore that where an injunction is sought either the individual who will be affected or the website, company or business that may be affected by the application could be notified of the injunction application and the court would have to consider the rights of those persons more generally when making a determination.
These new Regulations are a long way from being as wide reaching as SOPA legislation in the US. In effect the Regulations would hand back the job of defining the limits of Irish copyright law, in relation to online piracy, to the Courts. Therefore, realistically there will still be a lack of certainty surrounding the scope of this legislation, should it be passed into law, until a case comes along that will tests its limits.