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Copyright Infringement - ISP Wins Case Brought By the Recording Industries

DATE: 23.06.2011

 

In long running litigation brought by the recording industry in Ireland, the Irish High Court has declined to grant an injunction requiring UPC, an internet service provider, to put in place measures to prevent the illegal filesharing of sound recordings by its subscribers.

In EMI Records (Ireland) Ltd and others v UPC Communications Ireland Limited, the Court found that:

  1. UPC’s facilities were being used by subscribers to infringe copyright;
  2. UPC is however a “mere conduit” within the meaning of the E-Commerce Directive (2000/31/EC) but that did not prevent the possibility of injunctive relief being granted against it in appropriate circumstances;
  3. the relevant Irish provision, Section 40(4) of the Irish Copyright and Related Rights Act 2000 (the “Act”), which provides that facility providers such as ISPs are also liable for the making available of copyright infringing works by subscribers if they fail to remove such material upon notification of the rightsholder, is limited by its terms to “removal” of material and does not enable the Court to grant an order requiring an ISP to implement a graduated response system removing infringers from the internet;
  4. the filtering and blocking solutions proposed by the record companies, which intercepted illegal filesharing transmissions and sent warnings or diverted the subscriber to legal download sites, also did not amount to “removal” of material within the terms of Section 40(4) of the Act;
  5. the European Copyright in the Information Society Directive (2001/29/EC), which provides that Member States must provide rights holders with the ability to apply for injunctions against intermediaries, does not require any reconstruction of the limited but unambiguous language of Section 40(4) of the Act; and
  6. accordingly there was no power for the Court to order injunctive relief either requiring ISPs to (i) implement measures to prevent illegal filesharing; or (ii) block subscriber access to a particular website.

For further information on this decision, please click here.

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