By Keith Burke, Solicitor, Intellectual Property and Technology Unit
The October 11th decision of Justice Charleton of the High Court in the case of EMI Records (Ireland) Limited & others -v- UPC Communications Ireland Limited represents a significant new twist in the music industry’s long running battle to halt the widespread infringement of its intellectual property rights via online sharing of digital music files (“peer to peer file sharing”).
The evidence presented in the High Court hearing of the case highlights the scale of the task faced by record companies in shackling the infringement of their respective intellectual property rights via peer to peer file sharing. Of the 1,571,000 broadband subscribers in the Republic of Ireland, it was estimated by witnesses at the hearing that up to 42% of such subscribers have engaged in some degree of illegal downloading. Faced with the impracticality of pursuing the numerous individual broadband subscribers for intellectual property infringement in separate legal proceedings, some years ago recording companies began initiating legal proceedings against the internet service providers (“ISPs”) providing the broadband service.
In April of this year, the High Court approved the terms of a settlement reached between Eircom and the Irish subsidiaries of EMI, Sony, Universal and Warner. Under the terms of settlement, Eircom agreed to operate a “three strikes” policy with its broadband subscribers culminating in their disconnecting the broadband access of a user engaged in continued copyright infringement through peer to peer digital music file sharing. The active cooperation by Eircom (the market leading internet service provider in the Republic of Ireland) in the recording companies’ pursuit of copyright infringement by broadband subscribers was seen as a significant step for the music industry. The passive stance of many ISPs to the issue of copyright infringement via peer to peer file sharing was a considerable hurdle for the music industry to overcome and it may have been thought that the Eircom settlement would herald a change in approach amongst all ISPs in the Irish market.
EMI Records (Ireland) Limited & others -v- UPC Communications Ireland Limited
Mirror legal proceedings were initiated against the other ISPs in the Irish market including UPC Communications Ireland Limited (“UPC”). Injunctive relief was sought to restrain the infringement of the recording companies’ respective intellectual property rights in music recordings owned or exclusively licensed to them (e.g. through a Court ordered “three strikes” policy” or similar sanction). By way of specific relief, an order was also sought that UPC block or disable its subscribers’ access to the website thePirateBay.org (a website observed by the High Court as being “responsible for the great bulk of internet piracy in this country”). In its defence, UPC argued that it was a “mere conduit” in the infringement by its subscribers of the intellectual property rights of the recording companies and accordingly had no liability in respect of the infringement.
In his judgment of the 11th October 2010, Justice Charleton held that the provisions of the Copyright and Related Rights Act 2000 did not enable him to grant the relief sought by the recording companies. Justice Charleton went further and called on the Oireachtas to legislate appropriately in this area so as to bring Irish copyright law into conformity with that of its European counterparts.
The judgment highlighted the shortcomings of the Copyright and Related Rights Act 2000 which provides merely for the “removal of infringing material” by an entity providing facilities to enable the infringement of copyright (such as an ISP). The Oireachtas is now charged with the task of bolstering these provisions to provide for measures including the power to block access to internet sites, to disable access, to interrupt a transmission and even to cut off internet access in appropriate circumstances. The response of the Oireachtas to the High Court’s decision is awaited by recording companies, ISPs and indeed peer to peer file sharers with some interest.
Injunction sought by recording companies against UPC refused by High Court.
High Court calls on Oireachtas to broaden the provisions of the Copyright and Related Rights Act 2000 in order to adequately protect the intellectual property rights of the music industry.