Paschal Donohoe (Dublin Central, Fine Gael)
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Question 318: To ask the Minister for Jobs, Enterprise and Innovation in view of the recent decision to sign the statutory instrument on European Communities (Copyright and Related Rights) Regulations 2011, if he will outline the safety measures to protect legitimate Internet traffic; the way this will be policed; the recourse that will be open to anyone who finds that their content has been deemed in breach of copyright; the way this process will be implemented; and if he will make a statement on the matter. [10832/12]

Seán Sherlock (Cork East, Labour)
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The proposed Statutory Instrument is intended to ensure the return to the legal position that was considered to pertain, in relation to injunctions against intermediaries, prior to a High Court judgment in October 2010. This judgment also stated that Ireland was not in compliance with its EU obligations under Copyright Directive 2001/29/EC.

The wording of the proposed Statutory Instrument only allows a right holder to apply for an injunction in respect of a particular work. 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 should be noted that the EU Copyright Directive only directs that an injunction may be applied for – it does not mandate that it should be granted. It is also important to note that the granting of injunctions is not an automatic procedure. Injunctions involve a judicial process before the High Court.

Copyright must be balanced in that process by a consideration of the other rights involved, e.g. protection of private data, freedom of expression and information, the right to conduct a business. Any remedy must be proportionate. This is also spelt out in the draft Statutory Instrument when it is explicitly laid down that the rights of any person (including businesses) likely to be affected, must be given due regard when the court is deliberating on the granting of an injunction.

In other words, before granting any such injunction, a court will have to take into account the fact that blocking access to a website could involve damage to the owners of the legal content on that website. The court must ensure any remedy is not contrary to the right of information or freedom of expression and that any measures proposed should not be unnecessarily complicated or costly.

Any injunction under the proposed amendment of the Copyright Act 2000 would have to be considered in the context of the pronouncements of the Court of Justice of the European Union in judgments connected with this area.

These judgments (particularly Sabam v Scarlet and Sabam v Netlog) held that the protection of the fundamental right to intellectual property must be balanced against the protection of the fundamental rights of others who would be affected by the granting of an injunction. These rights include the right to conduct a business, to privacy, to freedom to receive and impart information and reiterated that any remedy proposed should not be unnecessarily complicated or costly.