Yesterday, despite a popular outcry and serious objections raised, Ireland’s Minister of State for Research and Innovation Seán Sherlock signed into law the European Union (Copyright and Related Rights) Regulations 2012, a statutory instrument which has been described as Ireland’s version of SOPA.
The background to the statute is outlined here and here. When news leaked, back in january, that Sherlock intended to sign a statute on the matter, an internet campaign was sparked off with over 80,000 signatures being collected in the space of a couple of days. The only concession to public concern, and the concerns of organisations like the Irish Internet Association, seems to have been the scheduling of a Dail debate before the signing – 50 minutes of ‘debate’, when the Minister had already decided on the statute he would sign.
As Karlin Illington writes in the Irish Times
At least Sopa received public debate by legislators. Sopa Ireland would have had no Dáil debate at all, were it not for a major internet campaign (in the end it got 50 minutes, at the end of which the Minister said he was signing the instrument anyway, without changes. Democracy at its finest).
In announcing the statute, Sherlock said:
I believe that in Ireland we must build on our very substantial achievements in the creative and digital media industry, and become a model of international best practice for innovation in this area. Ireland is home to some of the world’s most innovative Internet companies, and we are determined to grow our reputation as a location where smart people and smart companies can innovate in this fast-moving arena.
Despite the Minister’s recognition of Ireland’s internationally recognised place in digital innovation, he seems to have payed little head to those ‘smart people and smart companies’, who issued statements well in advance of yesterday explaining exactly why this statutory instrument is a threat to innovation:
The broad wording of the SI in its current form would allow for injunctions to be granted against an entirely innocent intermediary without specifying the fundamentals as to how such an injunction should apply. This creates huge legal uncertainty for any Internet business currently operating in this jurisdiction, and deters any future Internet business from choosing Ireland as a favourable location to establish their commerce.[Internet Service Providers Association Ireland]
The Minister has announced a consultative process for drafting new legislation in the area of copyright and the internet, which will include various bodies including ISP’s and the Internet Association of Ireland
In that context, I am happy to launch the consultation paper of the Copyright Review Committee. I am committed to reviewing and updating the Copyright legislation currently in place in order to strike the correct balance between encouraging innovation and protecting creativity. This paper has been prepared by the Copyright Review Committee in response to submissions received and public engagement. I urge all interested parties, including information providers and ISPs, innovators, rights holders, consumers and end-users, to study it carefully and engage in a constructive debate on all the issues
In the meantime though, thanks to the signing of the statutory instrument, issues of copyright infringement and illegal downloads will be decided by the Irish courts on an individual basis – so parties who feel their rights have been infringed can seek injunctions against websites forcing ISP’s to block them. Apart from the fact that the majority of technical opinion judges site blocking as ineffective, there are serious concerns here over finance and self-censorship as the costs of defending against an injunction are borne by the defendant. As the ISPAI warned:
This will put large corporations in the position where they may apply for injunctions against innocent small businesses which quite obviously cannot afford to defend such actions and are thus forced into a corner. Not only must an intermediary foot costs to defend an injunction application, significant costs may be incurred by them in implementing the injunction also. Such costs would be hugely burdensome to the smaller intermediaries and the SI wording in its current form does not provide any guidance as to who should bear the costs of such injunctions
The Stop SOPA Ireland campaign issued a statement in response to the signing:
The legislature has been treated with double contempt – firstly by being denied a chance to scrutinise and vote on the law and secondly by the Government’s staging of a debate where the opposition made honest efforts to constructively engage with the law, only to be told in the final seconds that nothing they had said was going to make any difference anyway.
It is a bad decision because there was an alternative wording of a Statutory Instrument proposed by Catherine Murphy TD and Stephen Donnelly TD which the Minister accepted met all his own policy requirements arising from the AG’s advice, made explicit the rights affirmed by the ECJ caselaw and allowed two years for primary legislation to be drafted. But despite all this, he wilfully stuck to his own flawed legislation. This is not intelligent or modern governance.
It is a bad decision because it ignores the unanimous concerns of Irish internet experts. From the Irish Internet Service Providers’ Association (whose members include Google), to Blacknight Hosting, to ALTO, all have said that the Statutory Instrument is not appropriate. Only yesterday Google spoke out against Internet censorship.