The Commercial Court has delivered a ruling which will have significant implications for music companies and ISPs, in regard to illegal downloading. The Court has granted three music companies, Sony Music, Warner Music and Universal Music, an injunction requiring UPC Communications to take measures to stop illegal downloading of music.
The parties are due to return to court on 29 April with submissions on how the order can be implemented.
In 2010, five music companies failed in a similar action aimed at compelling UPC to take action to prevent illegal downloading of music, due to a lacuna in the law (EMI Records (Ireland) Ltd. & Ors. v. UPC Communications Ireland Ltd. However, the Copyright and Related Rights Act 2000 has since been amended to allow a copyright owner to seek an injunction against an intermediary, such as an ISP, whose services are being used to infringe a copyright (S.I. No. 59 of 2012, the European Union (Copyright and Related Rights) Regulations 2012 which inserted s. 40(5A) into the Copyright and Related Rights Act 2000).
The graduated response scheme which the music companies sought in this case was more extensive than previous injunctions such as website blocking orders.
UPC's system will be similar to Eircom's "three-strikes" policy, however rather than having internet services immediately disabled, there is a further legal process involved. After receiving two warning letters from UPC, it is expected that the music companies will seek the disconnection of the offender's internet service through a court order.
Mr Justice Cregan has ordered UPC to set up the detection system within 12-15 months, under which infringing subscribers will be informed that their service will be terminated unless they stop the illegal downloading.
The cost of setting up the system has been estimated at between €800,000 - €940,000, and UPC argued that three quarters of this cost should be paid for by the music companies. However, the Judge indicated that UPC should pay 80% and the music companies the rest. In order to reduce the operating costs of the system, the Judge said that the number of infringement notifications to subscribers should be set at 2,500 per month.
The Judge has suggested that the cost of an independent arbitration system to deal with challenges to the termination of service will have to be borne equally by the parties.
We will keep you updated on the precise scope of the scheme due to be implemented.