The Department of Jobs, Enterprise and Innovation ("the Department") has proposed an amendment to the Copyright and Related Rights Act 2000 ("the Copyright Act"). This comes in the wake of Mr. Justice Charleton's call in EMI–v- UPC1 to address the issue of copyright infringement via the internet.

In EMI–v- UPC, Mr. Justice Charleton in the Commercial division of the High Court refused to grant an injunction against the internet service provider ("ISP") UPC, forcing it to take steps to prevent the illegal file-sharing of music by its customers. After reviewing the expert evidence, Mr. Justice Charleton held that this type of order would be just and proportionate but that the Court lacked the jurisdiction to make the order.

The amendment to the Copyright Act will be implemented as part of the European Communities (Copyright and Related Rights) Regulations 2011 ("the Regulations") and will further transpose Directive 2001/29/EC ("the Copyright Directive") into Irish law. The Directive provides that right holders may apply for an injunction against an intermediary whose services are used by a third party to infringe a copyright or related right.

Background to EMI & Others –v- UPC

In EMI –v- UPC evidence was given to the Court on different types of technical solutions available to UPC, eg filtering/blocking and a graduated response system whereby persistent infringers would have their internet access cut off using "a three strike" policy. The record companies involved in these proceedings had previously entered into a voluntary arrangement with Eircom who agreed to implement a three strike policy. The Court was also told that other countries operate a three strike system successfully. Mr. Justice Charleton noted the different legislative approaches taken by other countries (UK, the US, France and Belgium) but held that the remedies sought were not available under the Irish Copyright and Related Rights Act 2000 (The "Copyright Act").

The record companies relied on Section 40(4) of the Copyright Act, which ostensibly makes ISPs liable for copyright infringement if they fail to operate a notice and take-down policy. It provides: "Without prejudice to subsection (3), where a person who provides facilities referred to in that subsection is notified by the owner of the copyright in the work concerned that those facilities are being used to infringe the copyright in that work and that person fails to remove that infringing material as soon as practicable thereafter that person shall also be liable for the infringement".

Judgment

Mr. Justice Charleton found that UPC's customers were using its broadband facilities to download pirated music. He said that he was "satisfied that the business of the recording companies is being devastated by internet piracy. This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living..... It is destructive of an important native industry." However, he found that the legislative basis enabling him grant the relief sought does not exist in Irish law as it exists in other European jurisdictions.

Mr. Justice Charleton noted that solutions are available to the problem of internet copyright piracy. However, the only relevant power that the courts are given is to require an ISP to remove copyright material. Given the doctrine of separation of powers, the Court could not grant injunctive relief to the recording companies, even though the relief was justified on the facts. A notable aspect of judgment was the call to the legislature to clarify the position regarding the jurisdiction of the courts to grant injunctions against ISPs.

Reform

Richard Bruton, Minister for Jobs, Enterprise and Innovation has outlined that the amendment will be implemented as part of the European Communities (Copyright and Related Rights) Regulations 2011 ("the Regulations") and will further transpose Directive 2001/29/EC ("the Directive") into Irish law.

The Regulations will amend Section 40 of the Copyright Act to expressly provide that a copyright owner may apply to the High Court for an injunction against an ISP in cases where their network is being used by others to infringe the copyright in a work. This will remedy the lacuna identified by Mr. Justice Charleton in UPC, in which he expressed the view that section 40(4) of the Copyright Act had not given full effect to the Copyright Directive. Moreover, the amendment will place Ireland on a similar footing to all EU Member States who have adopted similar provisions.

Such a move to protect the rights of copyright holders is to be welcomed. However, it does not provide a solution to the vexed question of how Irish copyright law should be reformed generally. The proposed amendments only address one particular aspect of the Copyright Act which was brought to light in the UPC decision. They do not constitute a wide ranging reform of the Copyright Act. What may also prove interesting are the findings of the Copyright Review Committee, whose task it is to seek out parts of the Copyright Act which serve to stifle innovation in the creative industries. Therefore, the imminent amendments to the Copyright Act should be seen as the first step of a wider overhaul of the copyright regime in Ireland.

Footnote

1 EMI Records (Ireland) Ltd and others v UPC Communications Ireland Limited [2010] IEHC 377

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