David Norris (Independent)

Irish law could be brought into alignment with the intention of the European directive through a simple statutory instrument. As long as Irish law is deficient, Mr. Justice Charleton has found that all creative Irish industries are losing money. As things stand, there is a black hole which may lead to yet another situation where taxpayers, although they are not implicated, will be left to pick up the bill. I do not think the general public wish it to be the case that because of a legislative deficiency, the music companies will be able to take legal action which will land the taxpayer with the bill. That would be worrying for everybody, particularly in these difficult economic circumstances.

Mr. Justice Charleton stated: "Legislative intervention is required, if the Oireachtas sees fit, to protect constitutional rights to copyright and foster the national resource of creativity." One of the problems is with the wording of the regulations to which the Minister referred which do not use the words that appear to be required; that is, they do not make provision for "blocking, diverting and interrupting internet copyright theft". Because of these three words, we are technically in breach of the European directive.

This comes about because of developments in the technology of recorded music performance and access to it by the public. In particular, there are many new developments that are a little beyond me such as peer-to-peer sharing through iPods. As a person of my generation, I cannot understand why anyone would want several thousand tunes, but then I am not a kind of cultural glutton. If I visit the Louvre, for example, I make sure I do not overindulge and give myself aesthetic indigestion. I head for those one or two rooms in which I can enjoy in a profound way the works of art exhibited. However, I see tourists going through and they visit every room in the place. I do not know how their brains do not explode. They must be insensitive to the arts, but it is very good for tourism.

On a similar basis, I am glad I am not of the iPod generation because I would never willingly sacrifice the thrill and delight of the hunt enjoyed by anyone who is a specialist in musical collections. I was exhilarated for a week when I found an ancient record by the Original Dixieland Jazz Band in Fenning's record shop on the quays. I used to scour the shops and go through all the boxes. I remember the joy of finding something and the immense joy of listening to my treasure trove when I got home. If one can simply push a button and get 1,500 tunes straightaway from one's neighbour, much of the joy is gone. However, we cannot hold back technological advances.

I understand young people believe they are entitled to obtain music and this issue must be dealt with. However, the facts were established in the judgment of Mr. Justice Charleton in which he stated: "Between 2005 and 2009 the recording companies experienced a reduction of 40% in the Irish market for the legal sale of recorded music." That is a devastating blow. I do not know how many industries could tolerate a sudden and spectacular decline of 40% in their market. He went on to state: "Some 675,000 people are likely to be engaged in some form of illegal downloading from time to time." Does that mean we have 675,000 criminals? I do not think so, although we have 675,000 people who are infringing copyright law. The judgment continued that €20 million in sales was being lost annually. That is a big hole in the budget of the music industry. In a stringent comment, the judge stated:

I am satisfied that the business of the recording companies is being devastated by internet piracy. This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry.

The reason I contacted people involved in the industry and spoke to Senator Cassidy was that I was particularly concerned by an editorial in support of the music industry's position by Niall Stokes in Hot Press, a magazine read by many young people. It was an example of courage to address this situation so openly because I doubt his opinion was all that popular with his readers. This is someone who is passionately concerned about the music industry and not, I think, linked with its profits. I know there is not much sympathy for larger players in the music industry; for instance, people say, "To hell with U2 - they make millions and use their tax haven in Amsterdam." However, when Niall Stokes speaks, he must be listened to.

The court judgment stated the purpose of the directive was "to ensure that injunctive relief should be available in national law despite an exemption applying." It went on to state: "In failing to provide legislative provision for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law" and, because of this, "the Court cannot move to provide injunctive relief." What was the effect of this? There is an irony because, I am told, the effect of the publicity surrounding this judgment was to multiply theft. There has been an increase of more than 30% in such downloads because the public were given the impression that it was perfectly legal. Some 60% of Irish Internet suppliers are either actively supporting or prepared to support the music industry. That leaves 40% which are not.

Discussions have been ongoing and they can be considered in chronological form. The Irish Recorded Music Association, IRMA, wrote to all Internet providers to try to bring them on board by asking them to a meeting, but it found it was impossible to find a date that suited everybody and they could not agree on an agenda; therefore, although they did not actually refuse, they did not come along. They had their own interests. There was a case in Belgium which involved new technology from a firm called Audible Magic to filter illegal material from a network. Based on what had happened up to then - the discussions with the Internet providers, plus this new technology - IRMA brought Eircom to court. The case was heard in January 2009, but a settlement was reached, under which it was agreed that IRMA would find evidence of peer infringement and provide it for Eircom which would engage in the graduated response process. IRMA agreed with Eircom that it would negotiate with other service providers to persuade them to operate the same system and various documentation was exchanged.

As IRMA was unsuccessful in persuading either BT Ireland or UPC to co-operate, there was another case. However, before it got to court, the Data Protection Commissioner intervened and there was a suggestion there could be an infringement of legislative provisions concerning privacy, access to data and so forth. That led to another court case in which the judgment, on 16 April 2009, was again given by Judge Charleton who appears to be an expert in this area. It confirmed that none of the Data Protection Commissioner's concerns was valid and that the graduated response by Eircom and IRMA complied with data protection legislation. The way was and is clear. There are sensitivities because young people believe they have a right or entitlement and this must be confronted. The fact that there were 675,000 indicates a strong market and the music industry, like the newspapers, will have to develop innovative ways to collect revenue on the Internet.

The Minister referred to European patents, a matter that must be dealt with. European patent seekers are obliged to pay ten times the cost of seeking a patent in the United States because of bureaucracy, translations, having to apply in multiple courts and so forth. That is nonsense. I have been aware of this issue for some time because I visited the Irish community in Munich, including people working with the European Union, about two years ago. There were a number of very talented Irish people among them who were qualified in copyright law and they were pushing within Europe to have the situation cleared up. We must do this.

The Minister raised the question of fair usage, a very grey area in which I got involved with the Joyce estate. I took the advice of the most prominent lawyer in Ireland on copyright and we were able to find our way around it. However, at the time the Government was not always on the ball where these matters were concerned, particularly with regard to literature. I signalled to it some years ago, when the Joyce estate issue was coming down the line, that we would need to look for a derogation, in the way other countries had done. We were moving from protection of copyright for 50 years to 75 years and the Joyce estate which is extremely voracious and threatening in this area moved in and inhibited creative artists from reinterpreting Joyce and scholars from quoting from Joyce's books in a spirit that defied Joyce's stated views in the matter. The estate got away with it simply because we did not create the exemption as we could have done. This is an increasingly technical matter. There will be developments all the time, particularly electronically, and we must be prepared for them.

I will be interested to read the Minister's response; unfortunately, I cannot stay to hear it. It is a balancing act. This is the Legislature and we are charged with implementing the law. It is clear that there is a defect in it which has been drawn to our attention by the courts and it is our responsibility to ensure this deficiency is remedied. At the same time, we must be conscious of the fact that an entire generation has become accustomed to this and the music industry must be flexible and generous. It must keep its customers with it or, at least, try to transform the freeloaders - we all like to freeload if we can - into customers. They should not be denied access to the music they love, but, at the same time, we must ensure the creative artists and the industry get their just and proportionate reward.