Minister Seán Sherlock, junior minister with responsibility for research and innovation, has published draft copyright legislation providing a legal basis for the owners of the copyright in a work to seek an injunction in certain circumstances against Internet service providers (ISPs). The legislation has been the subject of widespread online debate. This was due primarily to concerns that the proposed legislation would mirror the controversial Stop Online Piracy Act (SOPA) in the United States. However, the main purpose of the Irish legislation is to fulfil our obligations under two EU Directives which require that rights holders have a mechanism available to them to apply for an injunction against ISPs where their rights are being infringed.
The legislation is intended to address a gap in the Irish Copyright and Related Rights Act 2000 which was highlighted by the High Court in October 2010 in the case of EMI Records Ireland Ltd & Others v UPC Communications Ireland Ltd. In that case, Charleton J held that as he was constrained by the wording of the 2000 Act, he could not grant an injunction to prevent infringement of copyright against an ISP in the circumstances of a “mere conduit” (transient communications). He pointed out that Ireland had not fully transposed the relevant EU Directives in this area.
The “mere conduit” principles provides that if an ISP does not initiate a transmission, or modify the material contained in a transmission, and does not select the receiver of the transmission, it is granted a “safe harbour” against liability. However the “mere conduit” defence, as provided for by the EU Directives, does not affect the power of the courts to grant an injunction in certain circumstances to require ISPs to terminate or prevent a copyright infringement by third parties using the services of that ISP once notified by rights holders of copyright infringements.
Some argue that the film and music industry would be best served if rights holders considered more innovative means by which to derive royalties for their works which strike a balance between reward for innovation and the rights of consumers in an ever changing digital age.
Contributed by Carol Plunkett.
