Ireland IP & Technology Law Blog : Dublin Lawyers & Attorneys for Intellectual Property, Communications & Information Technology Law in Ireland, U.S. & England

New EU telecoms rules recently came into force which are designed to reform the European telecoms market and to provide for more uniform regulation within the EU. 

A new Regulation establishing the Body of European Regulators for Electronic Communications (BEREC) came into force in early January 2010.  BEREC, which will commence operation in June 2010, will strengthen the single telecoms market by ensuring consistent regulation and approach to telecoms matters throughout the EU.

A speedy transposition of the Reform Package will be crucial for achieving legal certainty, enhancing competition and stimulating investment in Europe's telecoms market.

Telecoms operators will have to revisit their contracting terms to ensure the consumer protections incorporated in the directives are covered…

In addition to the transposition of two new directives by June 2011, the EU’s 500 million consumers will benefit from greater rights of access, information and privacy protection in the single telecoms market.  Telecoms operators will have to revisit their contracting terms to ensure the consumer protections incorporated in the directives are covered – however how much needs to be done will depend on how the Irish Government implements.  Whether in fact it will have a significant impact on Irish operators is questionable, given the broad consumer protection and compliance enshrined in already existing consumer protection laws and code here.  The telecoms reform package will also promote greater broadband penetration as well as encouraging investment and competition in next generation networks.

Useful Links: 

New Directives - on Eur-Lex, Official Journal of the European Union

eCommunications legislation in force - on Europe Information Society Thematic Portal

Memo on EU Telecoms Reform, 20th Nov 2009 - on Europa Online Press Room

Press Release "Green light for new EU telecoms rules", 24th Nov 2009 - European Parliament Website

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At its meeting in Brussels on 4 December 2009, the European Council took a significant step towards the creation of a European patent having unitary effect in the EU (PDF). Currently it is not possible to obtain a single patent to protect inventions in the European Union with innovators forced to file patent applications in every Member State individually.  In addition patent owners must litigate infringement separately in each jurisdiction.  This leads to increased patent prosecution costs, increased legal fees and lack of legal certainty due to conflicting judgments from national courts. 

…the creation of a European Union patent and the establishment of the EU Patent Court as a unified jurisdiction for patent related disputes.

At its meeting, the Council concluded that the enhancement of the European Patent system should have two pillars, i.e. the creation of a European Union patent and the establishment of the European and EU Patents Court (EEUPC) as a unified jurisdiction for patent related disputes.  In approving the steps that should be taken, the Council has noted that enhancing the patent system in Europe is necessary for boosting growth and innovation and is a vital element of the internal market.

The EU Parliament will now have the opportunity to debate the new EU Patent Regulation, while the Council will wait for an opinion on the new patent court from the European Court of Justice, which is expected at the earliest by Summer 2010.

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On 23 March, Ms Justice Finlay Geoghegan referred a number of questions to the European Court of Justice arising from an action taken by the music collecting society, Phonographic Performance (Ireland) Ltd (PPI), against the State.

PPI argued that hotels in Ireland are obliged as a matter of Community law to pay copyright fees for music played in hotel bedrooms.

At present hotels are not obliged to pay copyright fees for music played in hotel bedrooms because section 97(1) of the Copyright and Related Rights Acts 2000-2007 provides that there is no infringement of copyright where a sound recording is heard or viewed ‘in part of the premises where sleeping accommodation is provided for the residents’.

PPI argued that this provision is in breach of Article 10 of the Treaty establishing the European Community (now Article 4 of the Treaty on European Union) and is seeking damages. According to the Irish Times, PPI is seeking to charge €1 per hotel room per week and estimates it is losing in the region of €2.6 million a year.

In an interim decision, Ms Justice Finlay Geoghegan asked the Court of Justice for clarification on a number of issues:-

• Does a hotel which has TVs and radios in its bedrooms fall into the category of users which have to pay equitable remuneration under Article 8(2) of the Codified Directive 2006/115/EC? If it does, the Court of Justice will then have to decide whether Article 8(2) obliges hotel operators to pay copyright fees in addition to the fees paid by the broadcaster.
• Does Article 10 of the Directive 2006/115/EC permit Member States to exempt hotel operators for paying the copyright fees on the grounds of “private use”?

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In a recent report, the Irish Council for Bioethics has examined the ethical, social and legal issues associated with the collection and storage of biometric information (PDF).  The increase of identity theft has heightened the need for stronger identity verification systems many of which are based on the collection of biometric information that is unique to an individual (for example fingerprint, iris scans, etc.)  At the same time, the collection of this type of information has increased the risk of invasion of privacy and improper use of personal information.

... there must be a clear rationale to justify the necessity of using such biometric information.

The Council stated that while biometric technologies can enhance security and protect privacy, they can also have adverse implications for privacy.  The Council noted that it may be appropriate to override certain individual rights to benefit the common good, and it expressed concerns that this principle may be overused without justification. 

According to the Council, biometrics should be used as a proportionate response to the challenge at hand and that there must be a clear rationale to justify the necessity of using such biometric information.

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You may recall that in January of last year Eircom agreed to implement a “three strikes and you’re out” policy as part of an out of court settlement with IRMA.  Eircom agreed to work with the “Big Four” music labels in Ireland – Universal, Warner, Sony and EMI – to help them pursue illegal downloaders and uploaders.  Under the system Eircom customers downloading music from peer-to-peer services were to receive two warnings after which they would be disconnected if they continued to engage in the activity.  The settlement agreement set a precedent and it was expected that all other ISPs in the Irish market would be compelled to follow suit.

However, recent developments at home and in Europe now call into question the effectiveness of the agreement.

Eircom and IRMA have requested the High Court to rule on whether implementing the “three strikes” rule contravenes data protection law.  A negative ruling by the High Court is likely to make the enforcement of the agreement very difficult.  

Further afield, in May 2009, the French Parliament passed legislation that introduced measures to combat music piracy, including a “three strikes” regime for persistent copyright infringers that would result in the perpetrator losing their internet connection. However, the French Constitutional Court subsequently held the provision to be unconstitutional. The court held that the legislation went directly against a decision in the European Parliament, whereby disconnecting alleged copyright infringers would violate the fundamental rights and freedoms of internet users.

More recently, the EU has adopted a telecoms directive that guarantees citizen access to the Internet and which requires due process and effective judicial protection for persons whose access to the Internet is denied.  Commissioner Viviane Reading has stated that “Three-strikes-laws, which could cut off internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law”.

These developments pose seriousness challenges to the three strikes regime agreed between IRMA and Eircom.

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