So, the Dail (lower house of parliament) debated the proposed changes to Irish copyright legislation yesterday (Tuesday).  Over the last ten days, this has become a very significant debate.  The Irish Times has published a number of articles: by Noel Whelan (a political journalist), Karlin Lillington (a technology journalist) and TJ McIntyre (academic and solicitor).  I wrote about this legislation on Tuesday, and proposed four steps which I believed would improve the legislation.

Having watched most of, and read all of the transcript of the debate (and a lively Twitter stream on the #sopaireland tag), I’m pleasantly surprised to be able to say that all four points were touched upon at some stage (no credit to me – others made the points in various fora). On the other hand, none of the four were implemented, so there you go.

In the meantime, a well-drafted proposal for an alternative statutory instrument was issued by Catherine Murphy and Stephen Donnelly (with support from the above-mentioned TJ McIntyre and solicitor Simon McGarr.  I would endorse their proposal, because it clearly meets the two substantive criteria from my original post (sunset clause and clear Scarlet safeguards), but more importantly because it would provide reassurance to users and intermediaries about the extent of the power while still allowing action to be taken where there is a demonstrable necessity for such.  The key provision of the Donnelly/Murphy proposal is proposed section 40(5A)(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.‘ As well as what it obviously does in terms of over blocking, the use of ‘satisfied’ and ‘adequately’ would require a court to give proper consideration to the technological efficacy of a proposed action.  There are other important procedural devices included in the proposal, such as the notification of the Data Protection Commissioner and the treatment of costs.  It should be emphasised that recital 59 of Directive 2001/29 (which is the basis for this legislation) provides, in black and white, that ‘the conditions and modalities relating to such injunctions should be left to the national law of the Member States.’  I’ll say that again. ‘The conditions and modalities relating to such injunctions should be left to the national law of the Member States’.

Imagine my surprise, then, when the debate concluded with this comment of the Minister leading it.  ‘I will also defer to their legal advisers on this so that we can have a strategic conversation about how the future of the web operates in the State, but we are not changing the wording of the statutory instrument.‘  To me, this demonstrates exactly why the path of primary legislation should have been chosen, as it would have allowed for a proper consideration of alternative wordings.  Indeed, one may reasonably assume that it had been decided before the debate began that not a word would be changed; sadly not unusual in contemporary parliamentary proceedings but a real shock to those drawn to this debate because of its subject matter and a disappointing result to what was shaping up to be a useful exchange of views on law and technology.

The debate itself did include a decent discussion of the issues (aside from cheap shots about keyboard warriors – yawn).  I think the repetitional risks associated with hasty and overbroad legislation were well explained, and the impact of Court of Justice decisions was also recognised (although the argument that there is no need to legislate because the jurisprudence is clear didn’t persuade me – there are pages and pages in statute which set out things that are already in the case law).  And, by the standards of the debates on technology I have seen over the years, it was fairly well-informed.

I would like to point out that the discussion of the position of hosts was not as complete as it should be, though.  It seemed to be suggested (on a number of occasions) that as long as a host was acting in accordance with notice and takedown (i.e. article 14 of the E-Commerce Directive), they would have nothing to fear.  That’s not the case, though.  The key debate (including at European level) is about how the requirements for injunctions etc affect the protections for intermediaries of articles 12-14 E-Commerce Directive and article 5 of the Copyright Directive.  In the Scarlet case, for example, the ISP should have been protected by article 12 (which is much stronger than article 14) and article 5 Copyright Directive, but this was under threat (much less after the decision).  A host that doesn’t abide by notice and takedown (or a service provider not within the terms of articles 12/13) runs a serious risk of being subject to liability in general, so the injunction is less relevant to them anyway – they have much bigger things to worry about.  Oh, and there was a lot of confusion between notice and takedown and user codes of contact – they are actually different things and sites are not required to have the latter in order to benefit from the former.  At all.  In short, the claim that the injunction does not affect hosts is not proven in the slightest.

Aside from the above, I reiterate my call for the Copyright Review Committee to be consulted and the submissions received by the Department to be published (in accordance with the official policy on consultations* – their requirement, not mine).  I can’t see the harm it would do.

[* this is offline, but it was OK a couple of days ago; it’s still showing up through a Google cache here]