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Illegal file-sharing has become the scourge of the Irish record- ing industry in recent years, and any solution to fix this issue will have to be a legislative one, writes Gerard Kelly
problems T
he phenomenon of sharing music for free over the inter- net has been a constant thorn in the side of the record industry both in Ireland and abroad. Such illegal file-shar- ing by members of the public infringes the copyright in the relevant sound recordings and, as a result, impacts on the recording companies’ profits through lost sales.
The Irish recording industry has taken a number of court cases in
recent years to try to curb the practice of file-sharing in this country. In the latest case of ‘EMI Records (Ireland) Ltd and others vs UPC Communications Ireland Limited’, the Commercial Court decided against granting an injunction requiring internet service provider (ISP) UPC, which currently has around 15pc of the broadband market, to put in place measures to prevent the illegal file-sharing of sound recordings by its subscribers. The court upheld that under existing Irish law a broadband provider cannot be made liable for the acts of its subscribers. Historically, record companies issued court proceedings against
ISPs, requiring them to disclose the identity of particular subscribers proven to be involved in illegal file-sharing on the ISP’s network so that these individuals could be pursued for copyright infringement by the record companies. However, there was a change in tack in 2008 when proceedings were issued by the record companies against Eircom, the largest Irish ISP, seeking injunctive relief requiring Eircom to bring the infringements of its subscribers to an end. The Eircom proceedings were settled after a number of days of trial, with the company agreeing to implement a three strikes policy,
or graduated response system, that would lead to its subscribers being disconnected from the network following two warnings about their illegal file-sharing activity. In addition, Eircom agreed not to object to a court order requiring it to block subscriber access to the Pirate Bay website, one of many websites that provides access to infringing copies of music works over the internet. The UPC case was taken in June 2009 to force it to put in place similar measures. Similar proceedings were also issued against O2 and 3 in June this year but did not proceed pending the decision in the UPC case. In short, the record companies wanted the court to compel UPC (and the other ISPs) to do the following: (i) Implement a graduated response system removing an infringing subscriber’s internet access if that individual was involved in illegal downloading and had been warned on two previous occasions; or (ii) Put in place filtering and blocking solutions proposed by the
record companies during the trial, which would involve the ISP hav- ing to monitor and intercept illegal file-sharing transmissions and send warnings or divert subscribers to legal download sites; and (iii) Block subscriber access to the Pirate Bay website. UPC relied upon the fact that it qualifies as a ‘mere conduit’ with- in the meaning of the EU E-Commerce Directive, which was imple- mented in Ireland in 2003, and that, as such, it is not liable for the acts of subscribers over which it has no knowledge or control. In addition, and more importantly, UPC argued that the wording of the legislation relied upon by the record companies did not entitle it to the reliefs sought.
Volume 4 Issue 4 2010 Marketing Age 51
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