In long running litigation brought by the recording industry the Irish High Court declined to grant an injunction requiring UPC, an internet service provider, to put in place measures to prevent the illegal filesharing of sound recordings by its subscribers. Matheson Ormsby Prentice (Alistair Payne and Gerard Kelly) represented UPC in EMI Records (Ireland) Ltd and others v UPC Communications Ireland Limited.
In summary, the Court found that:
- UPC’s facilities were being used by subscribers to infringe copyright;
- UPC is however a “mere conduit” within the meaning of the E-Commerce Directive (2000/31/EC) but that did not prevent the possibility of injunctive relief being granted against it in appropriate circumstances;
- the relevant Irish provision, Section 40 (4) of the Irish Copyright and Related Rights Act 2000 (“the Act”), is limited by its terms to “removal” of material and does not enable the Court to grant an order requiring an ISP to implement a graduated response system removing infringers from the Internet;
- the filtering and blocking solutions proposed by the record companies, which intercepted illegal filesharing transmissions and sent warnings or diverted the subscriber to legal download sites, also did not amount to “removal” of material within the terms of Section 40(4) of the Act;
- the European Copyright in the Information Society Directive (2001/29/EC), which provides that Member States must provide rightsholders with the ability to apply for injunctions against intermediaries, does not require any reconstruction of the limited but unambiguous language of Section 40(4) of the Act; and
- accordingly there was no power for the Court to order injunctive relief either requiring ISPs to (i) implement measures to prevent illegal filesharing; or (ii) block subscriber access to a particular website.
The record companies brought the action in June 2009 seeking an injunction against the Irish ISP, UPC, requiring it to stop the copyright infringement of its subscribers and for UPC to block the well known website, The Pirate Bay. During the 5 week trial, evidence was given on various technical solutions, such as filtering and blocking and a three strike or graduated response system, which the record companies suggested could be implemented by UPC to prevent illegal filesharing on its network.
Such a three strikes policy, for example, is the subject of legislation in a number of countries, including the HADOPI law in France, but no such legislation exists in Ireland at present. Instead, the record companies took the case under Section 40(4) of the Copyright and Related Rights Act 2000, which provides as follows:
“(4) 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.”
Subsection (3) of the Act provides that the mere provision of facilities for enabling the making available of copies of a work shall not be considered itself the act of making available for copyright infringement purposes.
Mr Justice Charleton, sitting in the Commercial Court division of the High Court, accepted the record companies’ evidence that UPC’s customers are using its broadband facilities to steal copyright material and that such activity is devastating the business of the music industry. However he found that the section of the Act relied on did not provide a basis for the injunctive relief sought.
Charleton J. noted the legislative developments in other countries such as the UK, France, Belgium and the United States. These developments reinforced to the Court that the reliefs sought by the record companies, namely the power to block or disable access to Internet sites, to interrupt and divert a transmission and to cut off Internet access in controlled circumstances, were not covered by Section 40(4) of the Act.
The judge was conscious of the doctrine of separation of powers and noted that for the Court to grant an injunction on the basis not of law, but of economic abuse or moral turpitude, would lead the Court beyond its powers into the legislative arena. Ireland therefore requires a legislative solution to deal with the issue of illegal filesharing.