I will post some separate, lengthy comments about the Defamation Bill (which is - finally - passing through the Seanad today) later on or over the course of the week. However, something quite remarkable - and unexpected - happened in today’s proceedings. That is the question of the offences in Ireland of criminal libel, seditious libel and obscene libel.

The Defamation Bill, as drafted, and through Committee Stage in the Seanad, would have abolished these three (relatively obscure) offences, and replaced them with a new offence of the publication of gravely harmful statements. That would have been good, but not enough, as there would still have been a significant cirminal offence of the statute books. However, in an amendment (nos. 51 and 53) introduced by the Minister for Justice at this stage (only published this week), and debated quite speedily in the House, the sections relating to the new offence were removed; he argued that he was not convinced that it was appropriate to introduce a new criminal offence that would have such an impact on freedom of expression.

So on the topic of criminal offences, all that remains in the Bill is the abolition of the three offences (the full Defamation Bill 1961, which developed some of the offences in terms of penalties and procedures, is to be repealed in full anyway). The Minister did point out, though, that the ‘constitutional offences’ of article 40.6.1 (”the publication or utterance of blasphemous, seditious, or indecent matter is an offence which shall be punishable in accordance with law“), would still have to be dealt with, and that part of the 1961 Act might have to live on in order to provide for the sanctions for the constitutional offences. It was a short enough debate - Alex White (Labour) agreed with the Minister and Joe O’Toole (Ind) said that this would make Ireland a leader on this issue and would enhance the standing of the Minister in criticising criminal libel laws in more repressive states.

The context for the original proposal was the report of the Legal Advisory Group on Defamation of 2003, where they said (at para 59) that they

… endors(ed) the recommendations of the Law Reform Commission concerning the desirability of abolishing the common law offences of blasphemous libel, obscene libel and seditious libel. This is in a context where the Group has formed the view that matters such as blasphemy, sedition and indecency should not be dealt with in the context of a defamation statute even if they should be criminalised in their own terms in another statutory vehicle. (PDF)

but proposed the ‘publication of a gravely harmful statement’ offence (paras 60-61) while abolishing criminal libel. Earlier, as they said, the Law Reform Commission had also recommended abolishing the offences of seditious libel and obscene libel and maintaining but reforming ‘the common law offence of defamatory libel’, with a series of alternatives being set out regarding blasphemous libel. The LAG also mentioned, as you see, blasphemous libel (for abolition), although the Bill doesn’t points to this specifically in the repeal of common law (though repealing the Act of 1961, I think, would do some of this in practice anyway). The Bill, as it emerges from committee later tonight, will without further amendment provide for

• the repeal of the 1961 Act including Part 2 dealing with various criminal offences
• the explicit repeal of “the common law offences of criminal libel, seditious libel and obscene libel”
• no provisions on a new offence of the publication of gravely harmful statements
• no specific mention of blasphemy or blasphemous libel other than the repeal of s 13 (as part of the general repeal) of the 1961 Act (though I think that might mean that, especially in conjunction with the Constitution, blasphemous libel - or blasphemy, indeed - would continue to exist - but see note below on the definition of criminal libel)

And that, I believe, is good news.

(Additional notes on blasphemous libel after the jump)
(more…)

The Rest Is Noise by Alex Ross has just been published in the UK (and received the National Book Critics’ Circle award for criticism this weekend. It’s a lengthy survey of 20th century ‘classical’ music, with a lot of mini-biography and history thrown in. The approach is social history rather than music theory, I suppose, so don’t expect to see crochets and quavers!

I got a copy of the US edition for Christmas and I read it slowly over the course of about a month, and enjoyed it; seeing the reviews this week is therefore very interesting. The Observer says that it is a “vital, engaging, happily polyphonic book” but takes some shots at the US-centric nature of some aspects that resemble a Bush-style ‘messianic imperialism’. On An Overgrowth Path (a must-read music blog) talks about the book and links to BBC Radio 3 coverage. I think it’s a wonderful book; in my view, the last couple of chapters are too rushed (we chug along happily and then around the mid-50s the speed takes off and then we’re done, and a little more about music technology would have been very appropriate. Footnote fanatics note: 100 pages of small-print notes that I’m still getting ideas from, although you’d expect no less from the New Yorker’s music critic!

Anyway, Ross has a long-running blog and has been posting video links, audio clips etc ; you could lose yourself for hours in this site, and then when you’re finished, subscribe to the blog too…

Today’s news about the case being brought by a number of Irish record companies against Eircom (the former State-owned telco and still a very significant player in voice, broadband and other services) is unexpected in terms of its timing, I suppose, but also long ‘overdue’ in that it has been discussed and wondered about for some time. Of course, we have (muddy) history on musicos v ISPs when trying to get subscriber data but this case is different - it’s the ISP itself that is the sole defendant.

Discussion at the Irish Times (breaking news) here, and more from RTÉ here, and reaction from Jim Carroll (great music journalist at the Times) here. In this post : introduction, making available, filtering, IP rights enforcement and other comments. In particular, I think that Article 15 of the EU’s E-Commerce Directive (2000/31) is of some significance, and I explain why below. Please add your own knowledge and let’s see if we can get a handle on what’s going on…

INTRODUCTION

First of all, what’s happening? Well, so far we only have press reports to go on, but they seem to be seeking orders under the Copyright and Related Rights Act and claiming that Eircom is ‘making available’ music protected by copyright law. I think they’re referring to downloads via Eircom connections rather than Eircom hosting music on its servers. The industry asked Eircom to put filtering software on and Eircom said no thanks. Eircom’s defence appears to be (according to its lawyers) that “the company was not on notice of specific illegal activity that infringed the rights of the companies and had no legal obligation to monitor traffic on its network.”

INFRINGEMENT OF COPYRIGHT LAW

Let’s look at that making-available thing (a standard concept in copyright law and is section 40 of the Act). Now, that is defined as including via the Internet - so chalk one up for the recording industry - but there are specific provisions for intermediaries :

(3) Subject to subsection (4), the provision of facilities for enabling the making available to the public of copies of a work shall not of itself constitute an act of making available to the public of copies of the work.
(4) Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement.

That seems to presume that notification is the issue (it doesn’t say “has notice” which might allow for constructive knowledge to be pleaded; it says “is notified by the owner” which I would argue is more favourable to the ISP).

The Supreme Court of Canada dealt with this question in a landmark decision in 2004, SOCAN v CAIP (music publishers vs ISPs!). The question that interests me here is whether the ISP is liable for works communicated to the public through its networks; in a famous and influential passage, Binnie J said :

Section 2.4(1)(b) is not a loophole but an important element of the balance struck by the statutory copyright scheme. It finds its roots, perhaps, in the defence of innocent dissemination sometimes available to bookstores, libraries, news vendors, and the like who, generally speaking, have no actual knowledge of an alleged libel, are aware of no circumstances to put them on notice to suspect a libel, and committed no negligence in failing to find out about the libel [various citations of libel cases!]

Binnie went on to say that “So long as an Internet intermediary does not itself engage in acts that relate to the content of the communication, i.e., whose participation is content neutral, but confines itself to providing “a conduit” for information communicated by others, then it will fall within s. 2.4(1)(b)” and then pulls together everything from recent WIPO statements (”the mere provision of physical facilities for enabling or making a communication does not in itself amount to communication within the meaning of [the WIPO Copyright Treaty or the Berne Convention]“) to 19th century telegraph law (”the owners of the telephone wires, who are utterly ignorant of the nature of the message intended to be sent, cannot be said … to transmit a message of the purport of which they are ignorant”).

FILTERING

On the suggestion of filtering etc, I think that there is a serious and significant issue here from the E-Commerce Directive (ECD) of 2000. Three articles deal with exclusions from liability for conduits, cachers and hosts in terms of the general law, subject to certain exclusions (the most important being notice) and the power of a court to require “the service provider to terminate or prevent an infringement”, which is qualified clearly and importantly in Article 15:

1. Member States shall not impose a general obligation on providers, when providing [in essence, ISP, caching or web hosting services], to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity.

2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.

Now I think that an Irish court forcing Eircom to engage in the type of filtering that the music industry appears to be asking for (again with the proviso that I haven’t seen the pleadings, if they exist, so I’m going on press reports alone) would potentially be inconsistent with the Directive. What do you think? I’m reaching this conclusion independently of the Promusicae case (where the difficult question of disclosure of subscriber data in connection with IP law was discussed by the European Court of Justice) although I’d add that some of the comments in Promusicae about harmonisation of rights including Charter of Fundamental Rights rights could certainly be interesting in this context).

IPRED

Favouring the recording industry, we have the provisions of the IP Rights Enforcement Directive of 2004, which sets up various civil remedies (injunctions etc); our transposition was very minimalist as a lot of this is already in Irish law due to common law (Mareva injunctions, etc). I’m not sure whether this will have an impact but I suspect it might be a factor.

OTHER

Oh, and Jim Carroll also wonders why it’s the record companies and not IRMA. Off the top of my head, I think the answer is that it’s probably easier for them to do it (the head of IRMA is head of one of the record companies involved so they’re clearly on message, it’s not a split or breakaway) as they wouldn’t have to get involved in a preliminary issue about legal standing in the court - the record companies not IRMA ‘own’ the relevant rights and therefore they are the most convenient legal entity to bring the suit.

Tags: copyright, eircom, Ireland