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Respsonse to Consultation on Copyright and Related Rights Act 2000 (No.

28 of 2000) Copyright Injunction Statutory Instrument


Submission By ALTO Date: July 29th 2011

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ALTO welcomes the opportunity to respond to the Department of Jobs Enterprise and Innovation DJEI, Consultation on: Copyright and Related Rights Act 2000 (No. 28 of 2000). We support DJEI consultation on this important issue and we hope that feedback and consultation responses will assist the DJEI in a positive manner. About ALTO The voice of the Irish telecoms industry, ALTO represents national and international operators in the fixed, wireless, mobile and cable sectors. Our objective is to see the creation of a dynamic and innovative telecoms market in Ireland based on the principle of fair and open competition. ALTOs mission is to represent and communicate the interests of members to senior policy makers, regulators, the business community and the media. Membership is open to authorised communications providers and currently includes a host of significant players in the industry. To date, ALTO members have invested hundreds of millions in the Irish telecoms sector and they currently employ over 3,000 people. ALTO stands for Alternative Operators in the Communications Market. Established in 1998 to represent the interests of new operators entering Ireland's telecoms market, ALTO has become the voice of the telecoms industry, representing national and international operators in the fixed, wireless, mobile and cable sectors.

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ALTO has achieved considerable success in improving market conditions for its members and building a stronger telecoms sector for the benefit of consumers, businesses and industry. ALTO represents its members with regulatory authorities and policy makers such as the Government, the EU, the ComReg and the Competition Authority to ensure a competitive and fair business environment in which members can operate successfully. Members also benefit from effective intelligence gathering on current and future legislative and regulatory developments.

General Observations: ALTO observes that the rush to shore-up a perceived legislative gap by secondary legislation relating to the Copyright and Related Rights Act 2000 (No. 28 of 2000) may not be in the best interests of Intellectual Property Rights Holders, citizens or the information society agenda. ALTO believes that the State should not be implementing this legislation by way of Secondary Legislation at this time, as it serves absolutely no valid purpose. ALTO further believes that the proposed wording of the draft text leaves little guidance to a Court in determining what Order might arise out of a successful injunction application. We set out our views in more detail below.

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1. Compliance with European legislative obligations ALTO is firmly of the view that Ireland is fully compliant with its obligations relating to the Copyright Directive 2001/29/EC. Recent litigation and a movement to secure lost revenues on the part of certain groups of Rights Holders has resulted in huge media, political and international news coverage as well as lobbying efforts. None of that media coverage has been particularly useful or productive in the context of attracting investment and encouraging or fostering the Information Society in Ireland. Similarly while ferocious lobbying has obviously been undertaken by certain stakeholders, those stakeholders seem to have failed to take into account the stark reality that while they are entitled to protection and security, they have failed to recognise the changing business environments. Users are entitled to similar protection and security and a balance of the competing interests must be found in some sort of logical manner. The DJEI states that: "This Department had considered that such injunctions were already available in Irish law under Section 40 (4) of the Copyright and Related Rights Act 2000 and by reason of the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies granted according to settled principles, developed by the courts. .In these circumstances, and for the avoidance of doubt, it is considered necessary to restate Irelands compliance with the Directives concerned. ALTO agrees with the DJEI in all the circumstances and suggests that if what the DJEI concludes is correct, as set out above, then there is absolutely no logical need for a restatement of the States compliance with the Directives concerned. Save to placate certain stakeholders and interest groups nationally.

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In the normal course, if any EU Member State fails to comply with its obligations pursuant to European Law, infringement proceedings would have been commenced long before now. It must be noted that this is not the case in this instance and Ireland is compliant with its EU Law obligations. ALTO seeks further information over and above the EMI v UPC litigation as to precisely, which stakeholder groups have been pressing the State for this restatement and why the restatement is necessary at all? The guidance offered by the DJEI falls well short of the norms expected where a real deficit or proper legislative gap arises. Of course no gap arises here, yet the DJEI are planning to restate something at cost to the taxpayer for what purpose? 2. Regulatory Impact Assessment It is of great significance to ALTO that no Regulatory Impact Assessment RIA, is available for review alongside the proposed SI. This would appear contrary to Government policy on Better Regulation, which provides that RIAs are to be conducted for significant statutory instruments1. The Governments guidelines acknowledge RIAs can contribute to better policy making as they enable policy makers to identify potential burdens on business and ensure they are kept to a minimum.2 ALTO submits that the current proposal is a Statutory Instrument of significance and as such should be the subject of a full and comprehensive RIA.

Department of the Taoiseach website on better regulation : http://www.betterregulation.ie/eng/ Better Regulation Guidelines 2009 Pg 3 http://www.betterregulation.ie/eng/ Better Regulation Guidelines 2009 Page 3

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3. Statutory Instrument as proposed ALTO does not agree with the DJEIs proposal to implement the proposed modification by means of secondary legislation pursuant to Section 3 of the European Communities Act, 1973. It is often the case that democratic process is seen to be short circuited or manipulated when Ministerial Orders or Regulations are implemented by secondary legislation thus generating a clear democratic deficit. ALTO believes that the principal Copyright and Related Rights Act 2000 is in need of review and (while the DJEI are consulting on that) the correct mechanism to meet the DJEIs objectives is to bring any new measures through by primary legislation with all of the reviews, consultation and debate necessary to secure a properly constructed and robust solution within the Act or amended Act. ALTO is of the view that if the current Statutory Instrument SI, is signed into law, it will not enhance the States compliance with EU law in any way and will result in further protracted litigation until the SI is tested. There is a body of Irish case law to support ALTOs view that a challenge in relation to this could be successful. ALTO believes that the SI will not survive rigorous legal challenge before the Courts. The vague wording of the injunctive measures under the SI effectively places the Irish Courts in the position of the legislature, to make policy decisions concerning online copyright infringement, which are the subject of detailed and prescriptive provisions contained in primary legislation in other EU Member States. If the instrument is meant to provide for some form of graduated response system or to be a negotiation lever on the part of Rights Holders then it will not be practical and will not withstand challenge.

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3. Injunctions and rights ALTOs experience is that injunctions that require onerous supervision by Courts are generally ineffective and set aside. It is settled law in Ireland that a Court will not order an injunction which will require ongoing supervision, or which will be incapable of being effectively and easily be complied with.3 It should also be noted that the Scarlet v SABAM4 case is a clear example of where the Belgian Courts injunction against the defendant mandating the installation and use of software ultimately was overturned. The Belgian ISP Scarlet has succeeded in overturning the injunction requiring it to monitor users and filter out illegal peer-to-peer file sharing of music. That injunction, granted in June 2007, was the first in a series of attempts by the music industry to oblige ISPs to police their users, and was granted on the basis of evidence by SABAM (representing the industry) that monitoring downloads and filtering infringing content was both technically feasible and cost effective. Since then, however, Scarlet has demonstrated to the court that even the system of filtering suggested by SABAM produced by Audible Magic - was technically unworkable and that SABAM had deceived the court by falsely representing that the technology had been used elsewhere. On that basis the Belgian national trial court set aside the order against Scarlet. Earlier this year and further to a Preliminary Reference to the CJEU by the Belgian Court under the Preliminary Reference Procedure, TFEU Article 267 (TEC 234) the Advocate Generals opinion in the Scarlet v SABAM case was published. Advocate General Cruz Villaln stated that the measures ordering an Internet Service Provider ISP, to install a system for filtering and blocking electronic communications in order to protect intellectual property rights do infringe
3

Lennon v Ganly 191 lLRM 84 and Noel O'Murchu t/a Talknology v Eircell Ltd (Unreported, Supreme Court (21 February 2001)). 4 Case C-70/10 Scarlet Extended v Socit belge des auteurs compositeurs et diteurs (Sabam)

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fundamental rights; namely the right to privacy of communication, the right of protection of personal data and the right to freedom of information; which are protected under the Charter of Fundamental Rights and the Convention the Protection of Human Rights and Fundamental Freedoms. The Advocate General noted in his preliminary ruling that the proposed measures would be applied in an abstract and preventative way (i.e., a declaration would not have been made on the legality of the file-sharing), and would therefore mean that the ISP would have the responsibility of making a decision on the legality of the alleged file-sharing (and further, that a subscriber would have no avenue to appeal the decision). Additionally, the ISP would bear the cost of this process (and be punished with a daily fine of 2,500 should it not comply) leading to the conclusion that such a process did not justify restricting the fundamental rights. As a result, the Advocate General called on the Court of Justice of the European Union CJEU, to hold that national courts are precluded from making such orders. While the Advocate Generals opinion is of mere guidance to the Court, it is often the case that the Advocate Generals opinion is followed. That remains to be seen, but the opinion is of significant guidance in relation to the DJEI proposals. 4. The New Communications Regulatory Framework The protection of fundamental rights is of particular importance in the telecommunications sector in light of the recently transposed Directive 2009/140/EC European Communities Electronic Communications Networks and Services (Framework) Regulations 2011 (S.I. No 333 of 2011) amending Directive 2002/21/EC on the European Communities Electronic Communications Networks and Services (Framework) Regulations 2003 (S.I. 307 of 2003) transposing a new and updated common Regulatory Framework for electronic communications networks and services. Of significant note is Article 1(3)(a) which highlights the requirement for respect for fundamental rights; it states that any measures which

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relate to a consumers use of services which potentially restrict fundamental rights can only be imposed if they are: appropriate, proportionate and necessary within a democratic society. It notes that [the] implementation [of such measures] shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. ALTO remarks that the rights and process based approach to users is the correct and lawful one in all circumstances given the recent modifications to European Law. In assessing the DJEIs proposed SI and the text contained therein, it may place certain strains on the above quoted Article from Directive 2009/140/EC and cause unnecessary confusion and uncertainty which is undesirable and certainly not the intention pursuant to EU Law. 5. Conclusion ALTO state that this modification is unnecessary and unmerited as highlighted by the DJEI itself. The modification may also send the wrong signals to the international investment community in relation to Ireland Inc. and our readiness and availabilty to support and foster investment in the information, communications and technology sectors. ALTO calls on the DJEI and the Minister to suspend plans to restate the Irish position on Copyright and any plans to amend the principal Act by SI, until such time as the overall Act has been revised by the Copyright Review Committee.

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Our preference is to review a very robust Regulatory Impact Assessment conducted by the DJEI and see how matters develop subject to, and when married up with the work of the Copyright Review Committee. Following on from that we simply believe that any amendment should be subject to primary legislation in the usually manner and that the Minister may be acting ultra vires if an amendment is made to the principal Act without consultation with the Oireachtas and when same is not required pursuant to EU Law. ALTO is happy to assist the DJEI in its deliberations further to this consultation.

ALTO 29th May 2011

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