This week has seen a debate break out in the press and parliament of Ireland ( and beyond) on the familiar question in copyright law of injunctions sought by rightsholders against intermediaries. This is never an easy question, as there are possibly contradictory objectives included in legislation (legal and commercial certainty for ISPs, flexibility for rightsholders, the free speech, privacy and consumer interests of users, and more), as well as dispute on the effectiveness of proposed technical remedies. The wide interest in the proposed Stop Online Piracy Act (SOPA) in the US has, unsurprisingly, increased the attention paid to the Irish proposal.
Things have moved quite fast this week, so I don’t intend to go over the whole story: you can get that here from the Stop SOPA Ireland website and the Department of Jobs, Enterprise & Innovation statement. Instead, I offer a proposal for how the matter should be dealt with. My feeling is that the current proposal lacks detail, even compared with the unsatisfactory section 17 Digital Economy Act (which as some might recall was a response to a poorly drafted first attempt at such a clause, and hasn’t yet been implemented through the necessary statutory instrument). But I have some confidence that if the four procedural steps I recommend here are adopted, that concern can be dealt with.
1. The matter should be dealt with by primary legislation, i.e. an Act of the Oireachtas. Although there is a power to implement EU directive by way of statutory instrument, this is not a requirement. Due to the significance of the matter – and the strong statutory basis for copyright law in Ireland (the 2000 Act was debated at length) – the full application of the parliamentary process in the Dáil and Seanad (including committee stage) is appropriate.
2. The implications of the Court of Justice decision in SABAM C-70/10 need to be considered. The decision that the proposal responds to is EMI v UPC  IEHC 377 (the Irish High Court) which precedes the SABAM decision. Would the High Court have said the same if it had seen sight of SABAM first? Well, it does cite the questions in SABAM and summarises the finding in the Belgian court. (It has however always puzzled me why the ECJ’s Promusicae C-275/06 remarks on the balance between rights was not discussed). The Minister is clearly aware of the importance of SABAM (see his press statement), so that’s a good starting point. As it happens I think that SABAM is more of an obstacle than he appears to recognise, but opinions may vary. Of course, the English decisions in the Newzbin litigation and the judicial review of the DEA should also be assessed.
3. The Minister should (a) publish all submissions received in response to the summer 2011 consultation on this matter (the consultation question was online but is no longer online; the responses have not been published), and (b) seek the formal advice of the Copyright Review Committee (which will report this year on its wider review of copyight and innovation). [Note that the public body consultation guidelines in Ireland provide that ‘It is good practice to publish a list of the submissions received, summarising key messages and specific suggestions. Where possible, it is good practice to publish all submissions received, subject to considerations of confidentiality and / or defamation’]
4. With these three points in mind, any resulting legislative change should come into force along with any changes made as a result of the Copyright Review. This is because copyright law is ultimately a compromise between different interests and needs and to take a step as big as the one that the Government proposes here in advance of (what might be) other substantial changes to different parts of the ‘mix’ would assign undue priority to one set of interests. If there is no alternative to a speedier solution it should still be by way of primary legislation but with a sunset clause (i.e. that the legislation would not be valid beyond a specified point).
This matter comes before the Dáil for debate next Tuesday. If anyone wants to take up my four-point proposal, please do so.