In EMI Records (Ireland) Limited and others v UPC Communications Ireland Limited, the High Court (Mr Justice Charleton) has refused the application from various record and film companies for an injunction against an Irish ISP. The application sought (i) to restrain UPC, the ISP for about 15% of the Irish market, from ‘infringing the copyright in sound recordings owned by, or exclusively licensed to, the plaintiffs by making available to the public copies of those sound recording without the plaintiffs’ consent using its internet service facilities’ and (ii) to block or otherwise disable access by its subscribers to the website thePirateBay.org and related sites. The plaintiff companies sought a ‘three-strikes’ approach similar to that agreed with Eircom.
Mr Justice Charleton was sympathetic to the plaintiffs and it is quite clear that he would have granted the injunction if he believed that such a power existed. The claim of the plaintiff companies is that UPC is turning its face aside from the problem while ‘maintaining a front of righteousness’ by having a customer use policy that condemns internet piracy but ignoring breaches to increase profit. As the judge devastatingly observed, ‘the customer use policy of UPC makes it very clear that the internet service of UPC cannot be used to steal copyright material. This is a matter of contract, and for a breach of this obligation by the customer, UPC can terminate the contract. It never does. It is not so inclined.’
Mr Justice Charleton concludes his judgment as follows:
Solutions are available to the problem of internet copyright piracy. It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright. In failing to provide legislative provisions for blocking, diverting and interrupting internet copyright theft, Ireland is not yet fully in compliance with its obligations under European law. Instead, the only relevant power that the courts are given is to require an internet hosting service to remove copyright material. Respecting, as it does, the doctrine of separation of powers and the rule of law, the Court cannot move to grant injunctive relief to the recording companies against internet piracy, even though that relief is merited on the facts.
The full judgment can be downloaded from the panel opposite.
