In its final days, the Government is believed to be rushing through a statutory instrument that will amend the existing Copyright Act and which will give judges the power to grant injunctions against ISPs in relation to copyright infringement cases.

The move is believed to stem from October’s court case between the music industry (Warner, Sony, Universal and EMI) and UPC in which the judge pointed to a key gap in Irish copyright laws.

Siliconrepublic.com has learned that the Department of Enterprise Trade and Innovation and the Department of Communications have tabled the legislation which is currently in the hands of the parliamentary draftsman with a view to passing it by Friday.

The legislation is expected to be sanctioned by the present Minister for Enterprise, Trade and Innovation Mary Hanafin TD before Friday.

A statutory instrument is secondary legislation – only the Oireachtas can pass primary legislation – and as such is the only way changes can be made to legislation in such a tight timeframe.

Sources in the digital media industry say the nature in which the legislation is being pushed through could be damaging for Ireland’s image in the eyes of the major internet giants that have located operations here.

They warn that if the statutory instrument proceeds it could have “major implications for the freedom of the internet in Ireland.” It could also result in ISPs being ordered to implement three strikes and filtering systems.

The legislation is being swept through in the middle of election week when politicians are busy canvassing.

Three strikes

The statutory instrument being implemented stems from the outcome of UPC Communications Ireland Limited’s High Court victory in October in its opposition to the "three strikes" rule sought by Warner Music, Universal Music, Sony BMG and EMI Records aimed at illegal downloading and file sharing via the internet.

The record companies agreed to a settlement with Eircom in January 2009 in which the incumbent would agree to implement a ‘three strikes’ policy whereby illegal downloaders would be cut off from internet access if they were proven to have committed copyright theft.

The labels wanted Eircom to install filtering software, such as Audible Magic, to help prevent the rise of music piracy, which coincided with, and which they believe is responsible for, falling music sales. They said that over the course of six years, sales of music CDs in the Irish market went from €146m to €102m in 2007. Globally, according to the IFPI, more than US$40bn worth of music was illegally downloaded in 2007, up from US$20bn in 2006.

Cable telecoms provider UPC’s argument was based on the principle that the ‘three strikes’ measure was an agreement between the record industry and Eircom and that other ISPs and telcos were not obliged under Irish law to monitor or filter their users’ traffic.

In his judgment, Mr Justice Peter Charleton held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland regardless of the record companies’ complaints.

He said he was cognisant of the financial harm being suffered by record labels due to illegal downloading. “This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry,” Charleton said in October.

SABAM V Tiscali (Scarlet) case before European Court of Justice

The chairman of telecoms body ALTO Ronan Lupton said the industry is calling for a full consultation on such legislative measures. “The fact that this is being done in the 11th hour of the current administration raises question marks.”

Internet law expert TJ McIntyre says the legislation is premature in light of the Taoiseach promising a review of Irish copyright for the digital age. He said it is also premature in terms of a case taking place in the European Court of Justice between Belgian publishers group SABAM V Tiscali (Scarlet).

“What’s happening in Europe is similar litigation over the obligation of ISPs to conduct filtering and the question is what does European law require regarding injunctions against ISPs?

“To my mind, you can’t legislate in Ireland until we’ve seen the judgment from Europe.

“There are also procedural issues – normally, if you legislate you have to have completed a regulatory impact assessment beforehand, as well as a public consultation. Also, if there’s a breach found in a law then it would be normal to discuss it with the European Commission,” McIntyre said.

ALTO’s Ronan Lupton agrees the legislation could be premature. “As an industry we are waiting for the European Court of Justice to decide the SABAM Vs Tiscali case.

“Tiscali’s argument echoes UPC’s argument that telecoms firms and ISPs are mere conduits for the information. They provide the pipe and it’s not their role to snoop on their users.

“If you look at the new EU Communications Framework, it is all about citizens’ fundamental rights to services. Crucial legislative changes should go through due process and procedure,” Lupton said.