Maureen O'Sullivan (Dublin Central, Independent)
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Question 280: To ask the Minister for Jobs, Enterprise and Innovation his plans to introduce anti-online piracy laws here; if these will restrict the rights of the citizen in terms of freedom of expression and access to information; and if he will make a statement on the matter. [4908/12]

Seán Sherlock (Cork East, Labour)
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Some background information may be useful in appreciating the context of the proposed legislative instrument. The EU provided in the e-Commerce Directive 2000/31/EC for exemptions from liability for copyright infringement for intermediary service providers in cases of mere conduit, caching and hosting, upon certain conditions. This was to provide a framework for the development of e-commerce and telecommunication industries, Although such providers are thus free from civil and criminal liability in certain circumstances, the EU Copyright Directive 2001/29/EC (as allowed for in the e-Commerce Directive) provides that rights holders must be in a position to apply for injunctions against intermediaries whose services are used by a third party to infringe a copyright or related right.

A High Court judgment has held that, by reason of provisions of the Copyright and Related Rights Act 2000, an injunction is not available in cases of transient communications, and suggested that Ireland did not comply with EU law. As you will appreciate, for a member of the European Union, non-compliance with EU law is a very serious matter. For the avoidance of doubt, it has been decided to introduce a Statutory Instrument to restate the position that was considered to pertain prior to this judgment.

In granting such injunctions the Courts must take account of various judgments of the Court of Justice of the European Union. EU law has held that copyright is not an absolute right but must be balanced with other rights protected by the Charter of Fundamental Rights of the European Union. The Court of Justice of the European Union, on 24 November 2011, clearly laid out these principles that will guide all national courts in future (Case C-70/10- SABAM).

These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.

Peter Mathews (Dublin South, Fine Gael)
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Question 281: To ask the Minister for Jobs, Enterprise and Innovation his views on a matter (details supplied) regarding legislation on Internet piracy; and if he will make a statement on the matter. [5000/12]

Peter Mathews (Dublin South, Fine Gael)
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Question 291: To ask the Minister for Jobs, Enterprise and Innovation his views on a matter (details supplied) regarding legislation on Internet piracy; and if he will make a statement on the matter. [5009/12]

Seán Sherlock (Cork East, Labour)
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I propose to take Questions Nos. 281 and 291 together.

In relation to the scenario the Deputy has outlined, it is important to mention that copyright holders will not have power to compel the intermediary as stated. The copyright owner will have the right to apply to the High Court for an injunction against an intermediary in respect of works in which he holds the copyright.

The proposed Statutory Instrument allows for the possibility of applying for an injunction only in respect of a particular works. This would have to be considered by a court in its deliberations on the granting of an injunction against an intermediary. Furthermore, all remedies contemplated must be proportionate, as required by the Copyright Directive, and take into account the various judgments of the Court of Justice of the European Union in this area. It is important to note that following the adoption of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union applies to the court when implementing EU law. This means that in considering the grant of an injunction, a court must balance the intellectual property right with the other fundamental rights guaranteed by the Charter, including: Protection of personal data, Freedom of expression and Information, Freedom to conduct a business and right to property.

It is important to note that the requirement being legislated for is to ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. It is not a matter of believing or suspecting piracy or simply hosting copyright material. It must be shown that the services in question are used to infringe copyright.

The legislation proposed is a restatement of the situation that was thought to pertain prior to the EMI & ors v UPC judgment in October 2010. It is required in order to clarify Ireland's compliance with Art 8(3) of the Copyright Directive 2001/29/EC.

Seán Fleming (Laois-Offaly, Fianna Fail)
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Question 282: To ask the Minister for Jobs, Enterprise and Innovation if he will outline proposals for amending legislation regarding copyright holders to compel Internet service providers to block access to websites that they believe are engaged in piracy or hosting copyrighted material; and if he will make a statement on the matter. [5131/12]

Seán Sherlock (Cork East, Labour)
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An issue arose following a High Court judgment in October 2010 where it was stated that Ireland was not in compliance with its EU obligations under the Copyright Directive 2001/29/EC. It was held that the court could not grant an injunction against an intermediary in relation to internet transient communications. Until this judgment, it had been considered that Ireland was fully compliant with Art 8(3) of the relevant directive and that injunctions were available both under Section 40(4) of the Copyright and Related Rights Act 2000 and by reason of the inherent power of the court in relation to equitable remedies. Following consultation with the Office of the Attorney General it was considered that as the High Court decision was not appealed, it was necessary for Ireland, for the avoidance of doubt, to restate its previous understanding of its compliance with EU law.

Under the proposed legislative measure, an order may be sought by copyright holders only in relation to their own works. Any order against an intermediary will be subject to a judicial process. This must involve due consideration of the rights of other persons likely to be affected, such as internet service providers and consumers. The Charter of Fundamental Rights of the European Union, which has the same status as a Treaty when implementing EU law, must be considered. The Court of Justice of the European Union has held that this must be interpreted in a way which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. These rights include the right to intellectual property, the important and fundamental human right of protection of private data, the equally important human right of freedom of expression and information and also the right to conduct a business.

It is important to note that the requirement being legislated for is to ensure that right holders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right. It is not a matter of believing or suspecting piracy or simply hosting copyright material. It must be shown that the services in question are used to infringe copyright.