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Ireland: ISP liability and music piracy

PRACTICE AREA GROUP: Intellectual Property, Media and Entertainment
DATE: 20.06.2011

There have been a number of selective actions against individuals in relation to file sharing activity in Ireland. However, they have done little to combat what is estimated to be a 30 per cent reduction in music sales over a six year period. As a result, the record industry in Ireland has decided to bring the fight to the ISPs.

EMI Records (along with three other record labels) recently sought injunctive relief from the Court under sections 37 and 40(4) of the Irish Copyright and Related Rights Act 2000, to prevent Ireland’s largest ISP eircom from infringing copyright in sound recordings by making copies of the recordings available to the public without consent through its internet services facilities.

Section 37 of the Copyright and Related Rights Act 2000 grants the copyright owner the exclusive right to make works available to the public. The plaintiffs brought the proceedings as exclusive licensees and without joining the individual copyright owners. It was claimed that without an injunction, the property rights of the copyright owners would be substantially destroyed.

Irish law reflects EU Directive 2001/29 (the “Directive”) which provides that the mere provision of physical facilities for enabling communication (in this case broadband services) is not an offence. Section 40(4) of the Copyright and Related Rights Act 2000 provides that unless the provider of the facilities is notified of an infringement and acts to remove the infringing materials, then it too may be held liable for the infringement. The record companies submitted that the defence did not affect the availability of injunctive relief or the power of the courts to make an order requiring an intermediary service provider to cease to infringe any legal rights.

It came as a surprise to many industry observers that eircom settled the case. Moreover, eircom agreed to co-operate with the record industry to clamp down on illegal file sharing. The record companies will engage a third party to monitor online activity and provide eircom with details of ISPs linked to its service which appear to be engaged in illegal file sharing activity. The aim of the record labels is to get ISPs to impose a graduated response approach (also known as “three strikes and you’re out”) of contacting suspected infringers, presenting them with an opportunity to cease the illegal activity and if they fail to do so, reducing and ultimately terminating their service.

This settlement is disappointing because it not only sets a very unfortunate precedent contrary to the letter and spirit of the Directive but we still can’t say what approach the Irish courts would take to the ‘mere conduit’ defence in this context. However, the issue appears far from closed. Lawyers for the music companies have subsequently issued letters (available online now) to other ISPs setting out the basis of the eircom claim and requesting that they also adopt the same three strikes and you’re out approach to end peer to peer infringement. The letter proposes a similar contractual arrangement to that agreed with eircom, if the recipient ISP is willing to co-operate. In the absence of co-operation, the letter indicates that legal proceedings will be instituted against other ISPs. At the moment things would appear to have gone quiet, but watch this space.

Other Developments

Recently the French adopted new legislation which will create a new government agency known as “HADOPI” (“High Authority for the Diffusion of Works and the Protection of Copyrights on the Internet”) which will have power to cut off internet access of illegal downloaders for periods of up to one year.  The statutory procedures follow a “3 strikes and you are out” approach in that access will only be cut off after the alleged violator has been issued with 2 warning emails and then a certified letter and failed to remedy the situation.

However the legislation was referred to France’s top constitutional court which ruled that Hadopi should be allowed only to issue warnings, and that any decision to cut access would have to be made by a judge.

Further developments are expected.

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