CONTROVERSIAL DRAFT COPYRIGHT LEGISLATION PUBLISHED - IT'S NO "SOPA"
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The Minister for Jobs, Enterprise and Innovation has this afternoon published controversial draft Regulations to address the perceived lacuna in Irish Copyright law, originally flagged by Mr. Justice Charlton in the case of EMI v UPC (also see Davinia Brennan's blog below for another take on this!). The draft Regulations provide for that copyright owners may seek injunctions against intermediaries (which would include internet service providers). Subsection 5A(a) to be inserted at Section 40 of the Copyright and Related Rights Act 2000, would provide as follows:
“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[1] on the harmonisation of certain aspects of copyright and related rights in the information society applies”
The draft legislation is unspecific as regards the precise nature or scope of injunction which a court might be entitled to grant as against an intermediary service provider. However, as I have previously blogged, the European Court of Justice has already stated that injunctions of the sort which oblige service providers to filter and block internet sites which are permitting unlawful downloads may not be permissible under European law.
The only guidance offered for a court in the draft Regulation is in subsection 5A(b) which states that:
"In considering an application for an injunction under this subsection, the court shall have due regard to the rights of any person likely to be affected by virtue of the grant of any such injunction and the court shall give such directions (including, where appropriate, a direction requiring a person be notified of the application) as the court considers appropriate in all of the circumstances”
It would appear therefore that where an injunction is sought either the individual who will be affected or the website, company or business that may be affected by the application could be notified of the injunction application and the court would have to consider the rights of those persons more generally when making a determination.
These new Regulations are a long way from being as wide reaching as SOPA legislation in the US. In effect the Regulations would hand back the job of defining the limits of Irish copyright law, in relation to online piracy, to the Courts. Therefore, realistically there will still be a lack of certainty surrounding the scope of this legislation, should it be passed into law, until a case comes along that will tests its limits.
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As we reported recently, the CJEU held in Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10 that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law. The CJEU found that any national measures to protect copyright must “strike a fair balance between the protection of copyright and the protection of the fundamental rights of individuals who are affected by such measures”..jpg)
A rundown of our top eleven IP & Technology stories of 2011:.jpg){kind=small}
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Council Regulation 1383/2003 (the Regulation) permits customs authorities to take certain actions where goods entering the European Union (the EU) from non-member states are suspected of infringing intellectual property rights recognised in the EU. This includes suspending release of, or detaining the goods. Under the Regulation, such goods include, amongst others, counterfeit goods (goods infringing a trade mark right), pirated goods (goods infringing copyright or related right or design rights) and goods which infringe a patent under the law of the member state whose customs authorities are seeking to take action.
For the later part of this year, I have been watching with great interest (partly due to a fondness for the subject matter) the passing off case involving bread makers McCambridge’s and Brennans. McCambridge’s sued Brennans claiming deliberate copying of its brown bread packaging which would cause confusion within the market. You might wonder what sparked such action. The matter seems to have arisen after Brennans changed the design and colour of its packaging in January 2011, adopting a transparent, resealable packaging with a dark green rectangle on the front of the packaging and McCambridges’ claimed that this re-branding would result in confusion amongst its own customers. Would you be confused, see for yourself:.bmp)
The modern Intellectual Property Rights (IPR) law system was born out of China’s need to develop its market economy in the early 1980s. Within the past three decades China has built up a relatively comprehensive and advanced Intellectual Property Laws and enforcement procedures..jpg)
A recent decision (Ardis Health LLC et al. v. Nankivell)of the U.S. District Court for the Southern District of New York dated 19 October 2011, provides a good insight into the best practices for parties contracting in the social media space.
The European Commission published today a package of legislative proposals in a bid to ensure that all EU consumers can resolve disputes with traders without recourse to the courts. The proposal envisages that the European Parliament and the EU Council will adopt a 
The ECJ has, in a judgment released today (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10), indicated that an order requiring a Belgian internet service provider to filter certain peer to peer files is not permissible under EU law.
