Tuesday, 14 February 2012
Department of Enterprise, Trade and Innovation
An issue arose following a High Court judgement in October 2010 where it was held that Ireland was not in compliance with its EU obligations under Copyright Directive 2001/29/EC. It was held that the Court could not grant an injunction against an intermediary in relation to 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. Non-compliance with EU law is a very serious matter and could leave Ireland exposed to damages arising from legal actions based on non-compliance as well as proceedings by the European Commission.
A public 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. More than 50 submissions were received from interested parties. 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. I have also engaged extensively with stakeholders with a wide range of views in relation to any issues or concerns that have been raised in relation to the matter.
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. The amended text of the proposed Statutory Instrument was recently published by my Department and it should also be noted that this matter was the subject of a Dail debate on 31st January 2012.