Minister for State Sean Sherlock is in an unenviable position.

On the 10th of Jan 2012 his government was sued by EMI Ireland for their claimed losses arising from his alleged failure to provide for injunctive relief.

On the 17th January the Chief State Solicitor entered an appearance to that claim. That means the State then had 21 days to put in a defence.

By my, admittedly shaky calculations, this means the State has until the 5th February to enter a defence. They would like, as part of this defence, to say that they have already passed a law bringing in the change EMI have demanded.

This is why the Minister has correctly conceded a debate, while asserting he will still sign an SI at the end. He has a gun to his head.

He simply doesn’t have time to bring forward the primary legislation this matter so urgently requires before the deadline imposed by EMI.

It is difficult to have a full and calm discussion with a hostage.

For this reason, we suggested that a hybrid approach to the knotty problem might be the best outcome from this week’s extraordinary events.

Independent TDs Catherine Murphy and Stephen Donnelly delivered the text of an alternative Statutory Instrument to the Minister today. The aim was to meet the immediate needs of the Government in their requirement to have a law implemented, which ensuring that that law reflected the fundamental rights of businesses and internet users in its implementation. Furthermore, this alternative text provided for what is known as a ‘sunset clause’.

This clause would see the alternative Order effectively self destruct in 2 years time. This would provide plenty of time for the government to address these absolutely critical issues with a full and open debate followed by proper primary legislation, subject to full scrutiny by the Oireachtas.

Nothing the Minister sought in his draft SI has been removed. The additional safeguards of fundamental rights are those which he has already committed himself to, arising from European Court case law. And the implementation the State believes is prudent before the 5th February deadline will still have been achieved.

We look forward to the Minister’s response to this constructive suggestion in the debate, starting now.

The text of our proposed alternative SI, drafted by TJ McIntyre

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DRAFT OF

STATUTORY INSTRUMENTS

S. I. No. ___ of 2012

____________

EUROPEAN UNION (COPYRIGHT AND RELATED RIGHTS) REGULATIONS 2012

To be made by the Minister for Jobs, Enterprise and Innovation.

I, _____________, Minister for Jobs, Enterprise and Innovation, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001, hereby make the following regulations:

1.​These Regulations may be cited as the European Union (Copyright and Related Rights) Regulations 2012.

2.​The Copyright and Related Rights Act 2000 (No. 28 of 2000) is amended –

(a)​ in section 40, by inserting the following subsection after subsection (5):

“(5A)​(a)​The owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

(b)​in section 205, by inserting the following subsection after subsection (9):

“(9A)​(a)​The rightsowner of any right conferred by Parts III and IV may, in respect of that right, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society applies.

(b)​In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction (including the freedom to conduct business, the right to protection of personal data and the right to receive or impart information) and the court shall give such directions (including a direction requiring that persons likely to be affected be notified of the application) as the court considers appropriate in all of the circumstances.

(c)​Where the court considers that the right to protection of personal data is likely to be affected by virtue of the grant of any such injunction then the court shall direct that the Data Protection Commissioner be notified of the application.

(d)​Unless the court is satisfied that not granting an injunction under this subsection would give rise to an injustice, the court shall not grant such an injunction where a remedy in damages would be available to the applicant.

(e)​An injunction under this subsection shall not be granted unless the court is satisfied that the injunction will distinguish adequately between infringing material and lawful content so that it will not lead to the blocking of lawful communications.

(f)​The costs of an intermediary against whom an injunction is sought under this subsection shall be borne by the applicant irrespective of the outcome of such action.

(g)​Where an intermediary complies with an injunction made against it under this section the applicant shall pay to the intermediary all expenses necessarily and properly incurred by it in relation to such compliance.”

3.​These Regulations shall cease to have effect on 31 January 2014

GIVEN under my Official Seal,

____________ 2012.

_________________________

Minister for Jobs, Enterprise and Innovation.

O.J. No. L. 167, 22.6.2001, p.10.

O.J. No. L. 167, 22.6.2001, p.10.

O.J. No. L. 167, 22.6.2001, p.10.

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