Dáil Éireann Debate, Thursday - 9 June 2011
4 Deputy Willie O'Dea asked the Minister for Jobs, Enterprise and Innovation if he will respond to the High Court decision of 11 November 2010 (details supplied) concerning illegal copyright downloading. [14987/11]
Amharc ar fhreagraIn the EMI v. UPC High Court judgment of 11 October 2010, Mr. Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and could not grant an injunction in respect of infringement of copyright against an information service provider, ISP, in the circumstances of “mere conduit”. Accordingly, he stated that Ireland was in breach of its EU obligations in that respect.
"Mere conduit" provides that if an information service provider does not initiate a transmission or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a "safe harbour" against liability by virtue of the e-commerce directive. However, this does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.
Two EU directives, namely, the copyright directive of 2001 and the enforcement directive of 2004 specifically require that the holders of copyright, authors, music composers, lyricists, record producers, etc., are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
My Department had considered that injunctions were already available under section 40(4) of the Copyright and Related Rights Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not the court's view in the case.
Having examined the High Court judgement referred to, which was extremely long and complex, the Deputy will be aware that my Department sought the advice of the then Attorney General as to the implications of the judgment and any legislative changes which might be required arising from it.
In furnishing his advice on the issues raised, the Attorney General indicated it would be prudent to consult both with his office and with the Department of Communications, Energy and Natural Resources with regard to any implementing measures arising from the ruling concerned to ensure that any such measures do not impose any unnecessarily onerous obligations on the Internet service providers.
Accordingly, my Department has been in consultations with both the Office of the Attorney General and the Department of Communications, Energy and Natural Resources as to the terms of any legislative instrument which should be made in this area and I expect to consult interested parties to the case very soon about proposed action in this respect.
It is important to note that my Department does not propose to introduce a "three strikes" regime for disconnection from the Internet, as has been introduced by France and the United Kingdom, but simply proposes to provide explicitly for injunctions to be granted, as obligated by the two EU directives I mentioned earlier.
Additional information not provided on the floor of the House.
All other member states of the European Union would have powers to grant such injunctions enshrined in their domestic legislation by virtue of their transposition of the aforementioned two directives.
I greatly welcome the Minister of State's reply. First, I must apologise as the question stated the judgment was given on 11 November 2010 rather than on 11 October 2010. Basically, this matter arose during the regime of the previous Government and when Mr. Justice Charleton handed down in that decision last October, representations were made to the then Minister, Mr. Batt O'Keeffe, but unfortunately other events appear to have overtaken the matter. However, the urgency of this issue has not lessened and, in fact, has grown. As the Minister of State is aware, Xtravision has been placed in administration since this topic was first raised and part of the problem arises from the issue to which I refer. While I take the Minister of State's point about the "three strikes" legislation adopted in France being somewhat harsh, he has acknowledged the reasoning behind the High Court judgment, which is that the directives have not been properly transposed and that as Irish law stands at present, people cannot seek injunctive relief against the service provider. As I understand it, the Minister of State has stated that legislation will be prepared to allow people to seek such injunctive relief. Can he provide an indication as to how long this will take?
As I have stated, a consultation process is ongoing. As Minister, I have just come to this issue, although as it happened I had taken an interest in the matter when the judgment was issued. I have consulted officials in my Department and, as Minister, I have signalled today that the Government must make progress on this matter. I am not in a position to provide a definitive timeline to the Deputy at this juncture but, as he stated, there is a clear and urgent need to engage on this issue and to ensure the directives are properly transposed. I will revert to the Deputy. While I am not obfuscating on the answer, given it was a 70-page judgment and is a quite complex area, I ask that I may revert to the Deputy within a week, when some indicative timelines could be available.
I appreciate the Minister of State's response.
Question No. 5 answered with Question No. 1.
