My response to FG/Lab's form letter on Copyright.

FG/Lab have been sending out a form letter response to our mailing campaign. Ok, allow me to go through it point by point if you would.

I've taken Joe Carey's TD's version because it seems the most complete and because he is assistant Government Chief Whip.

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First, I’d like to clarify that Minister of State, Sean Sherlock TD, has emphasised that he has not put forward any proposals to enact a US type SOPA or Stop Online Piracy Type Law.

Firstly, I've never referred it it as SOPA as such. In fact I've been calling it "Sherlock's Folly" myself but lets look at your point:
Minister Sherlock has put forward a law which holds the conduits of information responsible for what they innocently carry. It provides a means for those rights holders to injunct ISPs, Websites and hosts without necessitating ANY contact with them.

So, yeah, nothing like SOPA.

A rose by any other name is just as bad law.

There does exist a need to legislate, which arises from a finding of the High Court in October 2010 that Ireland was not in compliance with its EU obligations under Copyright Directive 2001/29/EC. The High Court found itself unable, under existing primary legislation, to grant an injunction against an intermediary in relation to transient communications.

There does indeed exist a need to legislate but the EU does not insist we do it in this vague, half cocked, idiotic lazy manner.

There is an alternative SI put forward by TD's Steve Donnelly and Catherine Murphy which fulfils this legislative requirement in a much better fashion. You're argument is as illogical as saying "We must do something. This is something, therefore we must do this."

You needn't legislate it this way, so this is a false argument. It doesnt address our concerns with THIS manner of legislating it.

As you will appreciate, failing to be in compliance with our obligations under EU law can and does have serious consequences for us. The current issue of registration of septic tanks or turf cutting come to mind in that we potentially leave ourselves open to ongoing fines if we do nothing. (I realise there is a disparity with the specific analogies drawn Internet-Septic Tank-Turf Cutting, I use them to illustrate the point of our responsibilities under EU legislation)

Failing to be in compliance with the X case for 20 years doesn't seem to have bothered this government or previous governments!

There is no pressure on us to enshrine stupid law and no requirement to use an underhand, anti democractic Statutory Instrument to do so.

In fact EU Courts have been reversing themselves out of what they regard as a "mistake" recently.

This is another false argument which does not speak to the point at hand. This SI is bad, vague, lazy and sloppy. No one is pushing us to sign it except FG/Lab.

There is no policy change in the Statutory Instrument. It had been the intention of the Copyright and Related Rights Act, 2000 to provide civil remedies such as injunctions and it was assumed that the Act did, in fact, provide for such remedies until the High Court found otherwise in the case of EMI Ireland & others v. UPC in October 2010. Accordingly, the wording of the proposed Statutory Instrument has been framed in a manner which merely gives effect to the wording of the EU Copyright Directive (i.e. Article 8(3) of 2001/29/EC) rather than extending any scope beyond that of intermediaries.

No one is asking for a policy change. We're asking for a policy CLARIFICATION.
What you intend to pass amounts to "Ah sure, whatever you feel yourself on the day Justice!".

Judges should not MAKE law, they should enforce clearly worded law, enacted by the Dail not the whim of a single man. This is a gross dereliction of duty.

Why can Minister Sherlock not clearly state what is a breach of copyright and what is not. Why must he use the approach of "aahhh, it'll all work itself out in the courts shure!"

The intended purpose of the proposed Statutory Instrument is not to enact new EU legislation but, rather, it seeks merely to restate the position that was thought to exist in the Copyright legislation prior to Mr. Justice Charleton’s judgement in the case of EMI Ireland & others v. UPC in October 2010.

Any chance you could restate it with a little more clarity?

For example, we are aware that uploading, lets say, a movie, is in breach of copyright.

But which of the following is also a breach:

1. embedding the movie here from youtube?

2. linking to the movie over on youtube?

3. Linking to a site which embeds the movie from another site?

4. Describing how to find the movie on youtube in prose?

5. Describing how to go about finding copywritten material in general?

6. Describing how to go about finding descriptions of how to find copywritten material?


How are we to determine the file even breaches copyright? Where can we look that stuff up?! If its the latest James Bond movie, fine, but what if its someone's home video playing a Sony owned song??

These arent imaginary "what if"s ... we're faced with these exact situations a dozen times a day. We need our government to advise us more clearly what is an offence.

For God's sake, how can we abide by a law which isnt even written down??

What are we to do... find out that we've broken a law when a judge decides what the law is, right before he finds us guilty?!

Last July Minister Sherlock held a public consultation in relation to the wording of a proposed Statutory Instrument amending Section 40 of the Copyright and Related Rights Act, 2000. More than 50 submissions were received from interested parties, providing an excellent overview of all the issues and concerned involved. Minister Sherlock has engaged extensively with interested parties in respect of their views and concerns.

Great, can we see these submissions please? Because no one has been willing to release them. Certainly we were unaware of any call for submissions and as the largest publically accessible group of websites in the state by approximately a factor of 10, you'd think we would be informed.

Was Minister Sherlocks extensive engagement similar to his "debate" in the Dail where he admitted at the end that he never intended changing his mind and had said so before the dail debate already??

That, sir, is not engagement nor debate. Its disgraceful lipservice and an affront to democracy.

The legislative measure is expected to be introduced shortly as per the clarification issued by the Minister this week, a copy of which I attach below.

I hope this clarifies matters.

It clarifies absolutely nothing. Thats the problem. We're being told "the judges might protect you, at least thats what we've told them to do". This isnt acceptible. It costs far too much to access a court in this country and small internet startups just cant do it. Additionally we can be dragged into court over and over again at their whim. So can Google. So can Facebook. So can Twitter. Amazon. Anyone who accepts user generated content.



So in the face of serious concerns expressed by entrepreneurs, businessmen, lawyers, tecnologists, foreign commentators, opposition politicians and partners in government not to mention tens of thousands of voters, you are still going to press ahead and legislate an industry every single one of the government ministers involved admits publicly they dont understand...

Rightyho, just so we're clear...



Tom Murphy
tom at boards.ie

Kind Regards

Yours Sincerely

Joe Carey
_____________________________________
Joe Carey TD
Assistant Government Chief Whip & Clare Fine Gael TD,
Dáil Éireann, Leinster House, Kildare Street, Dublin 2
Constituency Office, Francis Street, Ennis, Co. Clare
Phone: 065 6891199 , 01 6183337
Fax: 065 6891205 & 01 6184520
Email: joe.carey@oireachtas.ie
Web: www.joecarey.ie