ISP Records a Hit in the High Street

Author:Ms Kate Colleary
Profession:Eversheds O'Donnell Sweeney

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...

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