Changes to Copyright Act Following Controversial UPC Decision

The Department of Jobs, Enterprise and Innovation ("the Department") has proposed an amendment to the Copyright and Related Rights Act 2000 ("the Copyright Act"). This comes in the wake of Mr. Justice Charleton's call in EMI–v- UPC1 to address the issue of copyright infringement via the internet.

In EMI–v- UPC, Mr. Justice Charleton in the Commercial division of the High Court refused to grant an injunction against the internet service provider ("ISP") UPC, 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.

The amendment to the Copyright Act will be implemented as part of the European Communities (Copyright and Related Rights) Regulations 2011 ("the Regulations") and will further transpose Directive 2001/29/EC ("the Copyright Directive") into Irish law. The Directive provides that right holders may apply for an injunction against an intermediary whose services are used by a third party to infringe a copyright or related right.

Background to EMI & Others –v- UPC

In EMI –v- UPC 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 Act").

The record companies relied on Section 40(4) of the Copyright Act, which ostensibly 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...