The High Court has recently ruled that internet service providers cannot be forced to take action to prevent the breach of copyright by third parties illegally downloading material over the internet.
UPC Communications Ireland Limited has succeeded in its opposition to the “three strikes” rule being imposed by Warner Music, Universal Music, Sony BMG and EMI Records, which sought to thwart illegal downloading and file sharing via the Internet.
The “three strikes” rule would have commenced with the record labels notifying UPC of the alleged infringement who would then have been required to notify the alleged offender that there was believed to be copyright infringement. If there were a second infringement, UPC would then have written to the infringing party warning that if the infringement continued internet access would be disconnected. On the third notification of infringement to UPC, the subscriber’s internet access could be terminated.
The Court was cognisant of the financial harm being suffered by record labels due to illegal downloading, stating that “this not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry.”
However, it held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland, regardless of the appropriateness of the record companies’ complaints. The Court highlighted the deficiency in Irish law which resulted in Ireland currently having no mechanisms to force intermediaries to disconnect internet users who engage in illegal downloading and commented that this results in Ireland breaching its obligations under European Union legislation.
UPC have reportedly stated that “our whole premise and defence focused on the mere conduit principle which provides that an internet service provider (ISP) cannot be held liable for content transmitted across its network and today’s decision supports the principle that ISPs are not liable for the actions of internet subscribers.”
It is likely that the decision will have ramifications for a similar settlement agreement entered into between the record labels and Eircom. The identification of this loophole in Irish law, highlighted by this case, may spur the enactment of amending legislation by the Irish Government in order to protect the rights of copyright holders.