According to EU Directive 2001/29/EC, every EU country has had to “ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by third parties to infringe a copyright or related right”.
In the view of our government, our existing legislation Copyright and Related Rights Act 2000 covered this requirement. However, in the EMI & others versus UPC High Court judgment of 11 October 2010, Mr Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and thus could not grant an injunction to prevent infringement of copyright against an information service provider (ISP) in the circumstances of “mere conduit” (transient communications). In doing so, he stated that Ireland had not fully transposed the relevant EU Directive(s).
Two EU directives (the Copyright Directive 2001 and the Enforcement Directive 2004) require that the holders of copyright – authors, music composers, lyricists, record producers etc. – are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.
The Attorney General’s Office most recent advice is that the obligation contained in the Directive is clear and unambiguous. Rightholders must have a mechanism available to them to apply for an injunction against intermediaries where their intellectual property rights are being breached.
The Directive states that rightholders should have access to injunctions against services “used by third parties to infringe”. Again, the Attorney General refers to the requirement for a mechanism to apply for an injunction “where their intellectual property rights are being breached.” ”. However, Judge Charleton’s ruling refers to the term ‘prevent’.
The serious difficulty with proceeding with this Statutory Instrument, as I see it, is that in stating that there’s a requirement – or even a desire – to ‘prevent’ copyright infringements, we are in direct opposition with the European Court of Justice ruling in the case of Scarlet Extended SA v Société Belge des Auteurs as follows:
EU law precludes the imposition of an injunction by a national court which requires an internet service provider to install a filtering system with a view to preventing the illegal downloading of files.
Such an injunction does not comply with the prohibition on imposing a general monitoring obligation on such a provider, or with the requirement to strike a fair balance between, on the one hand, the right to intellectual property, and, on the other, the freedom to conduct business, the right to protection of personal data and the freedom to receive or impart information.
I draw your attention to the crucial word – ‘prevent’. Much has been made of the fact that both the Directive and the existing Irish legislation pre-date Justice Charleton’s judgement. But that judgement pre-dates the European Court of Justice ruling (24 November 2011). You cannot ‘prevent’ copyright infringement without monitoring. You can take action once the infringement has occurred. But you cannot pre-empt that infringement. I believe the wording of this Statutory Instrument is too vague and that the Charleton judgement appears to be in conflict with the European Court of Justice ruling.
I believe we need a much more open and lengthy debate on this issue.