EMI Records (Ireland) Ltd and others v UPC Communications
Yesterday, Mr. Justice Charleton in the Commercial division of
the High Court refused to grant an injunction against an Internet
Service Provider ("ISP") 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.
A number of record companies joined together to issue Commercial
Court proceedings asking the Court to order UPC to take measures to
prevent copyright infringement on its broadband facilities and to
block "The Pirate Bay", a popular file-sharing
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
The record companies relied on Section 40(4) of the Copyright
Act, which essentially 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
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. He ended his
judgment with a call to the legislature to address the issue of
internet copyright piracy.
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