Minister publishes draft Copyright legislation
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Minister Sherlock has, today, published the draft European Union (Copyright and Related Rights) Regulations 2012, which are expected to be signed imminently. Minister Sherlock has strenuously denied claims that the proposed legislation mirrors the Stop Online Piracy Act (SOPA) in the United States, stating that such claims “are not based on fact”.
The draft Regulations are, in fact, brief and to the point. They amend the Copyright and Related Rights Act 2000 (the 2000) Act), by explicitly providing for the right of a copyright owner to apply to the High Court for an injunction against an intermediary whose services are used by a third party to infringe their copyright or related right.
This right is already available in all other Member States of the EU, as two EU directives (the Copyright Directive 2001/29/EC and the Enforcement Directive 2000/31/EC) specifically require that copyright holders are in a position to apply for such injunctions.
The Department of Jobs, Enterprise and Innovation considered that such injunctions were also available in Ireland under Section 40(4) of the 2000 Act, and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies. However the case of EMI Records (Ireland) Limited and others v UPC Communications Limited [2010] IEHC 377 threw confusion on the matter, when Mr Justice Charleton found that the Court did not have authority under the 2000 Act to order an injunction against ISP, UPC, requiring it to block certain peer to peer sharing websites on its network, and that Ireland had not fully implemented the relevant Directives. Therefore, as Minister Sherlock stated, these Regulations have been published “for the avoidance of doubt” and “to restate the position that was considered to exist prior to this judgment”.
The Regulations strike a fair balance between the protection of copyright owners and the protection of the fundamental rights of individuals, by providing that the court, where appropriate, should give directions requiring any person likely to be affected by the injunction application to be notified of same.
The Government has treaded carefully in drafting the new Regulations, and has taken appropriate account of the recent ruling of the European Court of Justice (the CJEU), in Scarlet Extended SA v SABAM, Case c-70/10. In that case the CJEU held that EU law precludes an injunction being made against an ISP requiring it to install a filtering system that would prevent the illegal downloading of files. Accordingly, the draft Regulations do not go so far as to allow the court to require an ISP to carry out general monitoring of the information it transmits on its network.
In conclusion, the Government has succeeded in drafting Regulations which clarify the law, and strike a fair balance between the rights of copyright owners, internet service providers, and individual users of the internet.
Please click here to access the draft European Union (Copyright and Related Rights) Regulations 2012.
