Seán Sherlock (Cork East, Labour)

At this point, I will address the points submitted by the Technical Group in regard to the statutory instrument. I will briefly give my analysis of them. There is not a great deal of difference between the two statutory instruments. I respect the point made. We are not setting out a new policy framework but clarifying legislation through an amendment to the copyright Act. We are going back to the position prior to the EMI v. UPC case where the right to seek an injunction by a copyright holder was there.

I note the Technical Group's alternative clauses propose the statutory instrument be of two-year duration. We have to monitor events, however, in the intervening two years and move quickly if essential balances are not maintained. That would be impeded by a two-year clause.

On the Technical Group's paragraph c, my proposed statutory instrument already includes a provision that the courts will have due regard to the rights of any person affected by virtue of the grant of any such injunction and the court will give such direction, including where appropriate a direction requiring a person to be notified of the application. This covers the Technical Group's point and to our mind it would be the action of a prudent judge.

On paragraph d, the remedy of damages will not be available against an intermediary provided it abides by the e-commerce directive. Again, the e-commerce directive has certain rights which protect the business. Given the wide variety of circumstances that may prevail, it is felt the best approach is to have the matter dealt with case by case through a judicial process which must balance all the rights involved. Protections are already in place under European law. The European Court of Justice requires all remedies must be proportionate while the right to freedom of expression and to conduct a business must be balanced with the right to intellectual property in considering the granting of an injunction. The Charter of Fundamental Rights provides in law for the protection of personal data, freedom of expression and information, freedom to conduct a business, the right to property and consumer protection.

On paragraph e, one cannot predict future circumstances. That is why we again feel the best approach is to deal with the matter case by case through the judicial process. Many rights are involved in this paragraph such as the right to copyright and to intellectual property in general. The first matter to be considered is to establish if there is an infringement. If lawful content is also included, the right of making available by the owner of the lawful content has to be considered. The rights of the citizen, consumer and end-user in freedom of expression and freedom to receive or impart information must also be taken into account. The right to data protection must come into the mix on the point made by the Technical Group. The right of the Internet service provider, ISP, to conduct a business and all that it entails must also be upheld.

For the purposes of clarity, the Technical Group submitted an alternative statutory instrument, and I am addressing specific points in it.

On paragraphs f and g of the Technical Group's submission concerning injunctions, these matters are already within the discretion of the court. EU law has held any measures must be fair and proportionate and not excessively costly. Yet again, given the varying circumstances that could arise, we feel a case-by-case analysis and the balancing of rights and consideration of all matters by judicial process is the proper forum for such decisions.

On Deputy Keating's point about publicising this, I want to reiterate we had an open consultation on it. I stated on the record I was available to meet anybody. I have sent out three communications to all Deputies, across all parties, and Senators on this issue so far. I have engaged with the media in as open a fashion as possible. I am willing to talk to people and am making myself available to the Internet community to talk to it on this.

On Deputy Buttimer's point about the implications of this amendment, I reiterate this is about balancing the rights of Internet users, Internet businesses and the copyright holder. The ISPs, as I outlined earlier, are the mere conduit, the mechanism through which information flows. They act responsibly, as do individual websites, and in the majority of cases do not overtly seek to facilitate copyright theft. A solution to the problem might be voluntary agreements in place between copyright holders and individual ISPs, hosters and caching companies.

I do not believe we are doing the bidding of big business because there are as many - a multitude of - small Irish copyright holders on this island who have the right to certain protections which are not superior to the other rights I have outlined prior to this.

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