> CLOSE UP ‘
Until the law is changed, an ISP cannot be compelled to implement a three strikes policy or block a particular website at the request of a private party
The Irish legislation The three strikes policy is the subject of legislation in a number of countries, including the HADOPI law in France, but no such legisla- tion exists in Ireland at present. Instead, the record companies took the case under Section 40(4) of the Copyright and Related Rights Act 2000 (the ‘2000 Act’), which states that if a provider of facilities, such as an ISP, is notified by a copyright owner that those facilities are being used to infringe copyright and the provider fails to remove the infringing material as soon as practicable, then the provider is also liable for the infringement. UPC argued that this provision is only relevant in a hosting context
where an ISP hosts material on behalf of its subscribers. As a result, the provision is not relevant to transmissions over the UPC network, which last for only fractions of a second, as it is only the hosting sce- nario that provides material that can be subsequently removed by an ISP when notified. UPC also argued that removing a subscriber’s internet access does not involve the removal of a copyright infringing music work, but an infringer from the internet, and therefore could not be covered under the provision.
The Commercial Court’s decision Mr Justice Charleton accepted the record companies’ evidence that illegal file-sharing of sound recordings is having a devastating effect on their business and that UPC’s customers are using its broadband facilities to steal copyright material. However, Justice Charleton noted that an injunction is not available just because a court may disap- prove of a particular form of wrongdoing. It was necessary for the court to defer to the manner in which the legislature has regulated copyright in the 2000 Act, taking into account any interpretation of the legislation that is necessary based on the various EU directives in the area.
While he agreed that UPC was a mere conduit, the judge held that this did not prevent the possibility of injunctive relief being granted against UPC in appropriate circumstances. He noted, in particular, that the Copyright in the Information Society Directive states that EU member states must ensure that copyright owners have the ability to apply to court for injunctions against intermediaries, such as ISPs, to bring infringements to an end. He said, however, that the wording of Section 40(4) of the 2000 Act is unambiguous and is limited by its ref- erence to the term ‘removal’ of infringing material. There was nothing in the relevant EU directives that required a reconstruction of the lim-
52 Marketing Age Volume 4 Issue 4 2010
ited, but plain and unambiguous, wording of Section 40(4) of the 2000 Act.
Justice Charleton maintained that none of the reliefs sought by the
record companies amounted to ‘removal’ of material within the terms of Section 40(4) of the Act and, therefore, there was no basis to grant the injunction sought. In coming to this conclusion, he noted legisla- tive developments in a number of other countries, including the UK and the US, which specifically deal with the remedies being sought by the record companies in a clear and precise manner. The judge was conscious of the legal 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 judicial role into the legislative arena, which a court cannot enter.
The implications
Subject to any appeal to the Supreme Court, Ireland therefore requires a legislative solution to deal with the issue of ISP liability for illegal file-sharing going forward. The take home message from the case is that as the law currently stands, ISPs are not liable for the actions of their subscribers over the internet. The subscribers them- selves will, as always, remain liable for copyright infringement if they continue to engage in illegal file-sharing and it is still open to the music industry to pursue such infringers through the courts. Access to the internet is increasingly being recognised as a funda- mental human right. For now, until the law is changed, an ISP cannot be compelled to implement a three strikes policy or block a particu- lar website at the request of a private party. It remains to be seen what will happen in respect of Eircom’s settlement where these steps have already been commenced by that company. Ultimately, the thorn in the side of the record industry remains following the UPC judgment, and it is expected that the music industry will be seeking legislative change in Ireland in order to remove it.
Gerard Kelly is a senior associate in the Intellectual Property Group at Matheson Ormsby Prentice and acted for UPC in the case.
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44 |
Page 45 |
Page 46 |
Page 47 |
Page 48 |
Page 49 |
Page 50 |
Page 51 |
Page 52 |
Page 53 |
Page 54 |
Page 55 |
Page 56 |
Page 57 |
Page 58 |
Page 59 |
Page 60 |
Page 61 |
Page 62 |
Page 63 |
Page 64 |
Page 65 |
Page 66 |
Page 67 |
Page 68 |
Page 69 |
Page 70 |
Page 71 |
Page 72 |
Page 73 |
Page 74 |
Page 75 |
Page 76