Finding Equilibrium: IP vs The Internet

For a small nation with a population of just over 4.5 million people, Ireland has produced more than its fair share of creative people: James Joyce, Bram Stoker, Van Morrison, Bono and more. It is now also the European home of a number of leaders in the technology industry, including Google, Facebook and Twitter. The ease with which unauthorised copies of protected works can be shared via the Internet, particularly following the advent of person-to-person file sharing, has led to tension between these two groups. In Ireland, attempts by content creators to force intermediaries such as Internet service providers (ISPs) to take active steps to prevent copyright infringement, culminated in a series of cases between record companies and ISPs.

Shift towards the music industry? In January 2009, following eight days in the Irish High Court, a settlement was reached between four major record companies and Eircom, a principal ISP in Ireland. Eircom agreed to implement a 'three strikes' solution to stop illegal downloading of copyright works over its network; infringing Eircom customers would be given two warnings and disconnected on their third offence. Subsequently, similar agreements were sought with other ISPs, including UPC. UPC refused to implement the three strikes policy and the record companies sought an injunction directing the ISP to take certain steps to stop customers illegally downloading music over its network. The record companies complained that their entire business was being decimated by Internet piracy and that UPC, as an ISP, was best placed to stop this.

The Irish High Court refused to grant the injunction (EMI Records (Ireland) Limited & Ors v UPC Communications Ireland Limited (2010) IEHC 377). While the court was sympathetic towards the record company's position, stating that ISPs "have an economic and moral obligation to address the problem", it found that the Irish Copyright and Related Rights Act 2000 (CRRA) granted the courts only the power to require ISPs to remove infringing material and not to block, divert or interrupt Internet access.

Bridging the gap The court indicated that Ireland had failed to comply with its obligations under European law by not fully transposing the InfoSoc Directive (Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society).

Article 8.3 of this directive places a clear and unambiguous obligation on member states to ensure that...