The European Union (Copyright and Related Rights) Regulations 2012 - S.I. No. 59/2012 (the “CRR Regulations”) was signed into law by junior minister of the Department of Jobs, Enterprise and Innovation, Sean Sherlock on Wednesday, 29 February 2012. The purpose of the CRR Regulations, implemented by way of statutory instrument, is to provide an explicit mechanism which will enable copyright rightholders to seek an injunction against an intermediary service provider (“ISP”) which provides facilities that may be used by third parties to infringe their copyright.

Background

The judgment of Mr. Justice Peter Charleton in the EMI Records (Ireland) Ltd & Ors v UPC Communications Ireland Ltd case proved to be the catalyst for change when it was published in October 2010. In Mr. Justice Charleton’s view, such a remedy was one which was not currently available to copyright rightholders within the existing parameters of the Copyright and Related Rights Act 2000 (the “CRRA”) other than in the limited case of an injunction to require ISPs who were hosting infringing material to remove it from their site. He believed that the legal authority of an Irish Court to grant injunctive relief for copyright rightholders in this context was “circumscribed” by the wording of the CRRA and he was, therefore, under the circumstances, reluctantly compelled to refuse granting the relief sought by the claimants. In reaching this conclusion, he stated that it was as a result of Ireland’s failure to fully transpose certain relevant EU Directives such as the e-Commerce Directive [2000/31/EC], the Copyright Directive [2001/29/EC] and the Copyright Enforcement Directive [2004/48/EC] into Irish law that such a remedy was not already explicitly available to copyright rightholders under Irish law.

In response to the legal lacuna exposed by Mr. Justice Charleton’s judgement in the EMI case, the Government decided to implement legislation to ensure there was no doubt that an injunction could be sought by a copyright rightholder against an ISP whose services are being used by third parties to infringe their copyright. In addition, the CRR Regulations are intended to bring Irish law fully into line with equivalent EU law.

The CRR Regulations

The CRR Regulations amended Sections 40 and 205 of the CRRA to allow the owner of the copyright in a work to apply to the High Court for an injunction against an ISP to whom Article 8(3) of the EU Copyright Directive applies. Article 8(3) provides that “each Member State shall ensure that the rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe copyright or related right.”

Sections 40 and 205 of the CRRA, as amended by the CRR Regulations, now provide that in considering an application for an injunction under these sections, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified by the application) as the court considers appropriate in all of the circumstances.

Application and Implications of the CRR Regulations

It is likely that a number of applications for injunctive relief against ISPs, will be initiated before the Irish courts this year. Music companies, collecting societies and copyright owners’ representative bodies are the candidates most likely to initiate such proceedings but in effect, any copyright rightholder will be entitled to seek injunctive relief. Such a remedy has been available since the enactment of Section 28(8) of the Supreme Court of Judicature (Ireland) Act 1877 which confers power on a court to grant injunctions whenever it is “just and convenient to do so”. An injunction, therefore, is always an equitable discretionary remedy and is not a remedy available as of right. A court will always consider established guidelines to determine whether an applicant has an adequate case for the granting of an injunction i.e. whether the claimant has a strong or merely arguable case; whether damages would be an adequate remedy; whether the balance of convenience lies in granting an injunction; whether the status quo should be maintained.; or whether further injustice would be done by granting the injunction.

Scarlet Extended SA v SABAM, Case c-70/10

Far from being prescriptive, the CRR Regulations lack substantive detail as to the nature and scope of the injunctive relief that a court may be entitled to grant. Minister Sherlock has made it clear that, in addition to the established guidelines outlined above, the courts will be able to draw significant guidance from the Court of Justice of the European Union (“CJEU”) decision in Scarlet Extended SA v SABAM (“Scarlet”), Case c-70/10. The CRR Regulations have been drafted with this in mind and as such, the parameters of any injunctive relief granted by the Irish courts are likely to reflect the restrictions set by the CJEU in Scarlet. It is, of course, up to the Irish courts to take account of and apply such restrictions.

In Scarlet, the CJEU found that an injunction awarded before a Belgian court, requiring an ISP to filter and block access by its customers to files containing copies of musical works was incompatible with EU law. The primary reasons for the CJEU’s decision represent the principles likely to guide the Irish courts in the implementation of the CRR Regulations and may be summarised as follows:

  • national courts may order ISPs to take measures aimed not only at bringing to an end infringements already committed against intellectual property rights using their information-society services, but also at preventing further infringements;
  • an ISP may not, however, be required to carry out general monitoring relating to its customers or the information it carries;
  • any relief granted to a copyright rightholder may not interfere with an ISP’s freedom to conduct its business;
  • any relief granted to a copyright rightholder must be fair and proportionate and may not be unnecessarily complicated or costly; and
  • the fundamental rights of ISP customers to protect their personal data and their freedom to receive and impart information must be respected.

Copyright Review Committee’s Consultation Paper

Minister Sherlock also launched the Copyright Review Committee’s Consultation Paper on 29 February. The Paper seeks to identify any areas of Irish copyright legislation that may hamper innovation and to make recommendations to resolve any problems identified. It is hoped that following a productive consultation process, the Copyright Review Committee will be in a position to present draft heads of a Copyright and Related Rights (Innovation) (Amendment) Bill, 2012 (the “Bill”) to Minister Sherlock. It has been proposed that all of the amendments to the CRRA (including the CRR Regulations) should be consolidated into the Bill to enhance the accessibility of Irish copyright law. If this happens it is possible that the practical effectiveness and wording of the CRR Regulations will be revisited. We will update our clients on any future developments in this area.