The Commercial Division of the High Court recently refused to grant an injunction to EMI and other record companies against UPC, an Internet Service Provider (ISP). Kate Colleary examines the decision and its consequences.
The record companies involved sought an order forcing UPC to implement measures to prevent copyright infringement on its broadband facilities and to block user access to 'The Pirate Bay', a popular file-sharing website. Although Mr. Justice Charleton believed that this type of order would be just and proportionate in the circumstances he found that the court lacked the jurisdiction to make it.
The court was presented with evidence of various preventative solutions which are available and which are used in other countries, including a graduated response system involving 'detection, notification and termination'. Under this system, persistent copyright infringers would have their internet access terminated using 'a three strike' policy.
The court was also told that following legislative developments in other countries, including the UK, USA and France a graduated response system now operated successfully. Mr. Justice Charleton noted the different legislative approaches in those countries but held that they merely reinforced his view that the remedies sought in this case were not available under the Irish Copyright and Related Rights Act 2000 (the 'Copyright Act').
The record companies sought to rely on Section 40(4), which essentially makes ISPs liable for copyright infringement if they fail to operate a notice and takedown policy. It provides that where an ISP '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'.
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.
He found that section 40(4) granted the Court powers where an ISP hosted copyright material but did not deal with a situation where an ISP merely permitted the transit of such material.
Mr. Justice Charleton concluded that while effective solutions to the problem of internet copyright piracy are in use in other countries the only relevant power that the courts have here is to require an ISP to remove copyright material. The court could not grant injunctive relief to the recording companies, even though the relief was justified on the facts. He ended his judgment with a call to the legislature to address the issue of internet copyright piracy.
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