by Matthew Austin August-04-2016 in Litigation & Dispute Resolution, Commercial & Business
The Court of Appeal recently reviewed the High Court Order made on 27 March 2015 requiring UPC (now Virgin Media) to implement a graduated response system (GRS) within its network for the benefit of copyright holders Sony Music Entertainment (Ireland) Limited, Universal Music Ireland Limited and Warner Music Ireland Limited. The GRS is a form of three-strike system to target copyright infringers via the internet service provider.
Infringement notices
The 2015 High Court Order required UPC to send to each infringing subscriber a “cease and desist” letter on receiving the first and second notifications of copyright breaches from the copyright holders. On receipt of a third copyright infringement notice, UPC is then required to send the copyright holder a notification that the infringing subscriber has been sent three infringement notices. This triggers an entitlement on the part of the copyright holders to apply to court for an order terminating the infringing subscriber’s internet broadband service. The 2015 Order included a number of other aspects, including a requirement that the copyright holders pay 20% of any capital expenditure incurred by UPC in implementing the system, with a cap of €940,000 on each such expenditure.
From the legal perspective the reason why this type of order was unusual is that in strict terms UPC, the internet service provider, was doing nothing wrong. The legal wrongdoing was being perpetrated by the UPC subscribers who were engaging in the illegal copying of copyright works and sharing the files on a peer to peer basis. Traditionally injunction-type orders would only be made by the courts against those who were actually engaged in wrongdoing themselves. However, it had been pointed out, and accepted, that the copyright holders did not have effective remedies against the infringing persons who would often be individuals acting alone in the privacy of their own homes. It was also said that internet service providers such as UPC are the entities who are far better placed than anyone to identify the customers who have used their services for infringing activities. UPC has the ability to identify the internet protocol addresses of consumers who are carrying out infringing activities.
High Court order upheld
When the Court of Appeal recently came to review the High Court’s order (upon appeal by UPC), it did not escape the Court’s analysis that although internet service providers are somewhat of an innocent bystander in this context, the profits of those internet service providers are “doubtless boosted by the fact that its services can be used for copyright infringement activities”.
The Court of Appeal thoroughly analysed European and domestic law and in particular Section 40(5A) of the Copyright and Related Rights Act, 2000 which provides that: “the owner of the copyright in a work may, in respect of that work, apply to the High Court for an injunction against an intermediary to whom paragraph 3 of Article 8 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights information society applies.”
On foot of European law, Irish domestic law had been changed with Section 40(5A) to allow for the making of an injunction order by the courts against a non-infringing internet service provider in certain circumstances.
Ultimately the Court of Appeal largely upheld the High Court’s decision and in particular the Court of Appeal felt that the High Court’s order was necessary, was not unnecessarily costly or complicated and the cost sharing proposals involved were, for the most part, reasonable and proportionate.
Back to Full NewsShare this article:
About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.