Representing the people of Tipperary

South Tipperary Fine Gael T.D. Tom Hayes has confirmed the allocation of nearly €700,000 from the Minister for Transport, Tourism & Sport, Leo Varadkar, for the start of works on the Fethard Road Railway Bridge in Clonmel. The announcement comes as part of a €379.5 million investment programme by the Government for regional and local roads in 2012.

“I welcome the confirmation from the Minister that this substantial amount of funding has been allocated to the project on the Fethard Road. These projects are vital to boosting employment in the construction sector as well as also ensuring top quality infrastructure for the local community.

“In total we are supporting 120 projects nationally under the Specific & Strategic Projects Scheme, with improvement works on 13 strategic regional roads and more than 200 low-cost safety projects” Deputy Hayes said.

“This funding, which in total amounts to €675,000, will be administered by South Tipperary County Council in the course of 2012, and the Minister has called on all local authorities to demonstrate their efficiency in using these resources” concluded Tom Hayes.

We all subscribe to the freedoms, the opportunities and the access to information that the Internet provides us with. Ireland is home to some of the world’s most innovative internet companies and we are determined to grow our reputation as a location where smart people and these smart companies can continue to innovate in this fast moving arena.

The last thing innovators need is a culture where the outputs of their creative endeavours have to be locked away or kept secret for the fear of theft.  Ireland is very proud of the fact that we have a modern suite of intellectual property laws that by their very nature balance a range of competing interests and rights in a manner that is seen, right across the globe, as reasonable and proportionate.

Going right back to 22 December , 2002, the date by which every EU Member State had to have implemented Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”. Having that provision enshrined in EU law and the laws of Member States for a decade has not restricted the development of the Internet or innovative internet companies. On the contrary, the Internet has flourished.

It may be useful to explain the background against which the requirement for the amendment to the Copyright and Related Rights Act 2000 has arisen.  In the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications).  In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s).  As you will appreciate, non-compliance with EU law is a very serious matter.

The “Mere conduit” principle provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a “safe harbour” against liability, by virtue of the e-Commerce Directive [2000/31/EC]. However, according to the same directive, this freedom from liability does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.

As far as can be ascertained from the judgment (the State was not a party to the case), the type of injunction sought was to require UPC to prevent infringement of the record companies’ sound recording copyright, through its internet “peer-to-peer” services, possibly involving a “three strikes and you’re out” scenario.  This is where the ISP sends three warnings of increasing severity and if the infringement continues, discontinues access to the Internet. It is sometimes referred to as a “graduated response”. I understand that blocking access to infringing online sites may also have been sought.

Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

The Department of Jobs, Enterprise and Innovation had considered that injunctions were available under Section 40 (4) of the Copyright Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts.  However, this was not Mr Justice Charleton’s view.  The record companies did not appeal the High Court decision and, consequently, the State has not had an opportunity to put forward its views on the legal principles involved nor on the construal of the relevant sub-sections of the Act, which we feel were not fully explored in the judgment.

The Attorney General’s Office was then asked (both by this Department and Department of Communications, Energy and Natural Resources) for its advice as to the implications of the High Court judgement.  The prudent course, he advised, would be to introduce a Regulation to ensure compliance. After consultations with the Attorney General’s Office and the Department of Communications, Energy and Natural Resources, this Department launched a public consultation on the text of the proposed Statutory Instrument. The consultation attracted over 50 submissions from interested parties.  For the avoidance of doubt, the Government has decided to introduce a Statutory Instrument to restate the position that was considered to exist prior to this judgment.

Concerns have been expressed that the proposed Statutory Instrument mirrors the Stop Online Piracy Act (SOPA) in the United States.  These concerns are not based on fact.  The purpose of the Statutory Instrument is simply to provide explicitly that injunctions may be sought, as obligated by the two EU Directives cited above.  It should also be noted that such injunctions are available in all other Member States of the European Union by virtue of the two Directives already referred to. In granting such injunctions the courts must take account of Court of Justice of the European Union judgements. These require that a fair balance be struck between the various fundamental rights protected by the Community legal order and the principle of proportionality. That would include, inter alia, the protection of the fundamental rights of individuals who are affected by such measures, the freedom to conduct a business enjoyed by operators such as Internet Service Providers, the protection of private data and right of freedom of expression and information.

In proposing to amend the legislation, I am particularly conscious of the importance of online content and digital businesses in the Irish context and, accordingly, am simply seeking to ensure Ireland’s continued compliance with its obligations under the relevant EU Directives following the decision of the High Court in the aforementioned UPC case.

I trust that this information will clarify the issue.

Why is the Government introducing new legislation in relation to Septic Tanks?

This Government is not introducing this legislation because we want to. It is to address a European Court of Justice ruling against Ireland from October 2009. Due to a lack of will from the previous Government they never introduced the legislation despite it being in their Programme for Government. The fact is that if we don’t introduce the legislation, Ireland is faced with hefty fines: a lump-sum penalty of €2.7 million and daily fines of more than €26,000 per day, which equates to more than €9.5 million a year.

Do the tanks need to be upgraded to the EPA 2009 Code of Practice Standards?

There are no standards that these septic tanks have to reach. Minister Hogan has stated this on a number of occasions. All the State seeks to establish is if the tank is working or not. Tanks that are not working properly may be polluting groundwater and contaminating our drinking water supplies and must be remediated.

Do you not think this is an attack on rural Ireland?

This is not an attack on rural Ireland, we are trying to protect rural Ireland. People have a responsibility to make sure their septic tanks are in good working order and are not endangering their water supply and the local community’s. The water crisis in Galway only a few short years ago should be proof enough of the importance of protecting our water supplies.

What will it cost owners?

I understand that people are worried about the costs relating to this and that’s why Minister Hogan has kept them to a minimum. Under the legislation, everyone who owns a tank needs to register it in 2012 with their local authority for a one-off fee of €50. There will be no further registration charge and there will be no inspection charge.

How will the inspections work?

The inspections are likely to commence in 2013 and will be on a risk-based system, whereby the EPA will be responsible for targeting areas where they believe the ground water is of poor quality due to contamination. I want to emphasise that there will be no inspection fee. The only requirement to pass an inspection is that your system be in working order, that’s all.

What about people who can’t afford it?

This is an important point, and that’s why if there are people with genuine money difficulties, we will review options to provide financial support to house holders. Any such support would have to take account of the overall very difficult budgetary situation.

Has there been an inequality of funding for urban water & sewer systems?

Almost €0.5 billion has been invested in the Department’s Rural Water Programme since 2006. This is a substantial amount of investment. At the same time there is a great deal of truth that householders in rural areas faced not insignificant expense in the purchase and installation of septic tanks. However, it should also be acknowledged that the same applies to people who have purchased new houses in urban areas. The development fees charged by planning authorities to developers include charges for connection to both drinking water supply and to the public sewers and municipal wastewater treatment plants – these fees were part of the purchase price paid by the purchaser. Where connection to a public water supply or a public sewer is not possible, the appropriate deductions are made by the authorities.

Fianna Fáil wouldn’t introduce this legislation, and Deputy Mattie McGrath is completely opposed to it, so why are Fine Gael acting now?

The members of the previous Government, this includes Deputy McGrath by the way, are conveniently forgetting the commitments that they made. The Renewed Programme for Government, agreed between Fianna Fáil and the Green Party on 10 October 2009 states on page 24 “We will introduce a scheme for the licensing and inspection of septic tanks and wastewater treatment systems”. Ireland now faces substantial penalties and fines from the ECJ. We are in this situation due to the lack of prioritisation given to the matter by the previous Government. This Government has acted decisively and without delay.

What happens if people don’t register their tanks?

Offences will be introduced where a person fails to meet the requirements of the legislation. The very maximum penalty that can be imposed under this Bill is €5,000. However, it is important to note that there are no offences in the Bill for which a person can be imprisoned.

Surely this information is already available to the Government through local authority planning files, why do people need to register their tanks at all?

At present there is no comprehensive register of septic tanks in Ireland.  Planning authorities do have records of developments carried out since 1964, however, many properties constructed since then have been sold, often more than once, and there is no record of these changes. Any details prior to 1964 are not held. Also, under the Planning and Development Regulations, applicants for planning permission are required to provide certain information in respect of septic tanks or other on-site wastewater treatment systems. However, this requirement only relates to developments commenced after the 31^st March 2007. Registration under the new legislation is necessary so that up-to-date details of all owners of unsewered properties, whatever their date of construction, can be recorded, along with the type of domestic waste water system in place.

How will people know if they are going to be inspected?

People need to be careful and make sure that they only grant access to their property if they have received a formal letter from their local authority notifying them of the pending inspection. They should not allow anyone access unless they have received the letter and if the inspector has valid identification. At least 20 working days notice of inspection will be given.