Backdoor legislation is no way to tackle thorny issue of copyright

NET RESULTS:Rumours persist of an attempt to rush through a law to shut down illegal file-sharers

IN THE dying days of the Fianna Fáil government, a curious drama unfolded around the area of copyright and music downloading.

Going into the final week of February, reports circulated in several places, including this newspaper, that the government planned to sign into force a statutory instrument that would create the legal basis in Irish law for internet service providers to be compelled to shut down illegal file-sharers.

The reason for this was reportedly to fill a gap in legislation that caused a High Court judge to rule last November that UPC, one of the largest internet and communication service providers in the State, was not liable for its customers’ downloading.

The judge drew attention to what he saw as a gap, noting that Ireland seemed to be out of compliance with European law.

The day after the reports appeared, the Department of Enterprise, Trade and Innovation issued a press release in which the then minister Mary Hanafin stated there was “no truth in the rumour circulating in the media that I am about to sign a statutory instrument” in the area of copyright.

By that point, this statement was no doubt true. But in the previous two days, I had spoken to three sources who had been told it was happening – although at that stage it did not involve Hanafin, but then minister of State Conor Lenihan.

One source is directly connected to discussion on the issue and the stakeholders. This person had been told in no uncertain terms that not only was a statutory instrument considered, it had already gone to parliamentary drafters and the intention was to sign it into law within days.

Perhaps few in government circles were aware until the last minute that there was an unseemly drive to have this legislation prepared for signature. Nonetheless, it would seem bizarre that those directly involved with the issue would be told that draft legislation was already being prepared.

The eventual turnaround was good news on two fronts. First, there was the devious process by which this legislation was going to be imposed.

Statutory instruments, by their nature, end up having little real Dáil oversight and, potentially, little to no public discussion, as a minister has the prerogative to sign them in, creating laws automatically.

Best practice demands that there be full consultation with, at the very least, the key stakeholders. In this case, that would have included not just the music industry, which would like to see such a law brought in, but the internet service provider organisations, business groups, and privacy advocates such as Digital Rights Ireland and the Irish Council for Civil Liberties.

None of these groups was approached for input in advance of the planned legislation. It is understood legal action would have been likely had the government attempted to act on this issue without respecting the consultation process.

Notably, the statement by the minister noted that there had been no consultative process and that, therefore, there would be no intention of bringing in new legislation.

We seem to have a bit of a chicken-and-egg situation. The government statement is correct – such legislation should not be considered without the formal consultation process preceding it. On the other hand, I stand by the impeccable source who said they had been told from “on high” that the process was under way and that the intention was to bring in legislation without any regard for a consultation process.

So, for these procedural reasons, it is absolutely proper that the process did not go ahead.

But it is also right that it did not happen on the basis of larger, and as yet unresolved, issues about the fairness of such laws, which shift the role of policemen from where it should be – with those in a formal law enforcement role – to businesses, some of them small businesses already struggling.

Why should internet service providers be charged with policing their customers? And why should the costs of having to do so be passed along to the businesses and individuals who use their services, as they inevitably will be?

In recent years there has been an increasing tendency to turn misdemeanour internet activity, such as downloading a song illegally, into criminal acts and address them in the same way as one would deal with serious crime. This is using a cannon to crack a nut.

The basic issues have been challenged at European level, specifically with a Belgian court case that is currently before the European Court of Justice.

That judgment could make any Irish legislation in the area moot. It is better to wait until this issue is addressed at EU level before bringing in legislation here.

Either way, we need to consider seriously the bigger picture: the effect on the knowledge economy.

At the same time that the government is trying to encourage internet-based companies to come to this country, it threatens to bring in legislation that would make it a considerably less attractive place to do business on the basis of outdated and outmoded copyright laws.

A three-strikes law on file-sharing could have wider implications for many companies that store user data, such as Amazon, Google, Microsoft, and others.

Bringing such a law in through a statutory instrument (at any stage) can only alarm companies that are looking for a stable legal environment where the government does not whip laws into place with little consultation.