Written answers

Tuesday, 31 January 2012

Department of Enterprise, Trade and Innovation

Proposed Legislation

9:00 pm

Photo of Anne FerrisAnne Ferris (Wicklow, Labour)
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Question 285: To ask the Minister for Jobs, Enterprise and Innovation if he will address concerns that have arisen in regards to the proposed statutory instrument that will provide for injunctions for copyright owners in certain circumstances; and if he will make a statement on the matter. [4783/12]

Photo of Seán SherlockSeán Sherlock (Cork East, Labour)
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A consultation was held by my Department last July in relation to the wording of the proposed Statutory Instrument. More than 50 submissions were received. Some were from rights holders such as songwriters, authors and their representatives. Others were from telecom companies and businesses that carry out intermediary activities on the internet and still more were from bodies concerned with freedom of expression and data protection issues.

I am most grateful to all who contributed to this consultation. It provided me with an excellent overview of all the issues and concerns involved. Legal advice, which was received with some submissions, was forwarded to the Office of the Attorney General for consideration. Following this, and taking all matters into account, including the opinion and advice of the Attorney General, it is felt necessary that there should be a restatement of the situation which was considered to pertain in Irish law in relation to injunctions against intermediaries prior to the judgment in the EMI & ors v UPC case. This is required in order to clarify Ireland's compliance with Art 8(3) of the Copyright Directive 2001/29/EC.

It is important to note that following the adoption of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union applies to court deliberations 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 the right to property. Any remedy must also be proportionate and follow the principles in this area laid down by the Court of Justice of the European Union.

Photo of Seán KennySeán Kenny (Dublin North East, Labour)
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Question 286: To ask the Minister for Jobs, Enterprise and Innovation his views on any forthcoming legislation regarding copyright law; his views on the possibility of court orders affecting entire websites when only a small portion of the website might be in breach of the legislation; if purpose and character, the nature of the allegedly infringing work including parody, satire and fair use; if the proportion and amount of any allegedly infringed work will be taken into consideration; and if he will make a statement on the matter. [4814/12]

Photo of Seán SherlockSeán Sherlock (Cork East, Labour)
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A consultation was held by my Department last July in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act 2000. I am most grateful to all who contributed to this consultation. It provided me with an excellent overview of all the issues and concerns involved. Legal advice, which was received with some submissions was forwarded to the Office of the Attorney General for consideration. Following this, and taking all matters into account, including the opinion and advice of the Attorney General, it is felt necessary that there should be a restatement of the situation which was considered to pertain in Irish law in relation to injunctions against intermediaries prior to the judgment in the EMI & ors v UPC case. This is necessary to ensure Ireland's compliance with the EU Copyright Directive.

The proposed Statutory Instrument allows for the possibility of applying for an injunction only in respect of a particular work. This would have to be considered by a court in its deliberations on the granting of an injunction against an intermediary. Furthermore, all remedies must be proportionate, and following the adoption of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union applies to courts 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, Right to property and Consumer Protection.

Specific exemptions in relation to parody and satire are not prescribed in the Copyright and Related Rights Act 2000. The introduction of such exemptions are being considered by the Copyright Review Committee, whose first consultation paper is expected in February. The Committee is also examining the "fair use" doctrine.

Photo of Peadar TóibínPeadar Tóibín (Meath West, Sinn Fein)
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Question 287: To ask the Minister for Jobs, Enterprise and Innovation the groups he has consulted in the drafting of proposed legislation on Internet copyright. [4815/12]

Photo of Seán SherlockSeán 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 make grant an injunction against an intermediary n 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. A public consultation in relation to the content of a draft legislative measure in this regard was held. This received wide publicity at the time. In addition to liaising with the Department of Communications, Energy and Natural Resources, the consultation document was forwarded to bodies such as the Assoc of Trademark and Patent Attorneys, BT Communications Ireland Ltd, Consumers Association of Ireland, Digital Rights Ireland, Eircom, EMI Music Ireland Ltd, Enterprise Ireland, Google, Hinkson Solicitors, IBEC, IDA, IMIR, International Software Federation of Europe, Internet Service Provides Association of Ireland, Irish Copyright Licensing Agency, IRMA, Law Society of Ireland, Microsoft Ireland, O2, UPC, Vodafone, X-tra Vision. Over 50 written submissions were received.

Photo of Peadar TóibínPeadar Tóibín (Meath West, Sinn Fein)
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Question 288: To ask the Minister for Jobs, Enterprise and Innovation the assessment he has made of the impact that the proposed legislation on copyright infringement will have on freedom of speech and business development on the Internet. [4816/12]

Photo of Seán SherlockSeán Sherlock (Cork East, Labour)
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A consultation was held by my Department last July in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act 2000. I am most grateful to all who contributed to this consultation. It provided me with an excellent overview of all the issues and concerns involved. Legal advice, which was received with some submissions, was forwarded to the Office of the Attorney General for consideration. Following this, and taking all matters into account, including the opinion and advice of the Attorney General, it is felt necessary that there should be a restatement of the situation which was considered to pertain in Irish law in relation to injunctions against intermediaries prior to the judgment in the EMI & ors v UPC case. This is necessary to ensure Ireland's compliance with the EU Copyright Directive.

This Directive and the Court of Justice of the European Union require that all remedies must be proportionate and that the right of freedom of expression and the right to conduct a business must be balanced with the right to intellectual property in considering the granting of an injunction. The Deputy will be aware that since the adoption of the Lisbon Treaty, the Charter of Fundamental Rights of the European Union must apply 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 which include: Protection of personal data, Freedom of expression and Information, Freedom to conduct a business, Right to property and Consumer Protection.

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