Under proposals recently published by the Department of Jobs, Enterprise and Innovation, the music industry is to be given the power to apply for an injunction against intermediaries whose services are used by a third party to infringe their copyright or related rights.
The proposals, aimed at changing Ireland's copyright laws, would make it possible for the High Court to issue injunctions against internet service providers (ISPs) in cases where it is shown that their networks are being used for copyright infringement.
The draft ministerial order is open for public consultation until July 29 2011.
Richard Bruton, minister for jobs, enterprise and innovation, recently announced a separate review of the Copyright and Related Rights Act 2000, which he says will identify "any areas of the legislation that might be considered to create barriers to innovation in the digital environment". The closing date for receipt of submissions is July 29 2011.
The move follows a decision of the Commercial Court in October 2010,(3) in which Justice Charleton held that he had no legislative powers to force UPC Communications to implement a system to enforce disconnections over illegal downloads. EMI, Sony, Universal and Warner had sought to force UPC to follow the 'three strikes' policy of cutting off internet access for those illegally downloading music.
In the previous matter of EMI Records Ireland Limited v Eircom Limited (2008/1601P) Eircom agreed in a settlement to a 'three strikes and out' policy against illegal peer-to-peer uploaders and downloaders. This involves an ISP issuing a number of warnings to subscribers found infringing copyright before disconnecting them from the services provided.
The implementation of the three strikes rule by telecommunications service Eircom is currently under investigation by the data protection commissioner after it emerged that 300 customers were erroneously sent 'first strike' warning letters. Eircom admitted that a limited number of letters were issued following a software failure caused by the change to daylight saving time. UPC was not willing to adopt the policy accepted by Eircom in the previous settlement and fought the injunction proceedings being brought against it.
In its October 11 2010 decision the court held that UPC was not liable for a customer's illegal downloading. Justice Charleton noted that the requisite laws were not in place in Ireland to enforce disconnections over illegal downloads, despite the record companies' complaints of copyright infringement having merit. Justice Charleton acknowledged that, based on the evidence before him, he was convinced that there was no just or convenient solution open to the record companies other than seeking injunctive relief against the ISPs, but he noted that the legislative basis enabling such an order to be made did not exist in Irish law as it exists in other European jurisdictions.
The court was forced to review the legislation before it and determine what remedies were available for the cause of action. The court examined the legislative framework in Ireland relating to copyright, specifically the Copyright and Related Rights Act. This was read in light of European law and legislation in place in other jurisdictions.
The court ultimately ruled that it was unable to grant the injunction sought by the parties against an ISP in the circumstances of "mere conduit", even though the relief was merited on the facts. Following this conclusion, the judge was of the opinion that Ireland is not fully compliant with its obligations under European law.
Justice Charleton's decision highlights deficiencies in the Copyright and Related Rights Act which results in Ireland having no mechanisms to force disconnection among internet users engaged in illegal downloading, thus making Ireland not yet fully compliant with its obligations under European law. Consequently, measures clarifying Ireland's position under the EU Copyright Directive (2001/29/EC) in relation to injunctions need to be introduced.
The department emphasised that in proposing to amend the legislation, it was 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". A spokesperson for the department said that the proposed amendment to the Copyright and Related Rights Act addressed a "discrete issue that arises as a result of the UPC case" and was unrelated to the wider review of the act.
It is anticipated that if the proposed amendment is enacted in its present format, the amendment will be used by the music industry to seek injunctions against ISPs.
For further information on this topic please contact Aoife Murphy or Robin Hayes at WhitneyMoore by telephone (+353 1 611 0000), fax (+353 1 611 0090) or email ([email protected] or [email protected]).
(1) EMI Records (Ireland) Limited v UPC Communications Ireland Limited.