Legislating for a Copyright "Loophole" in 2012
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The Department of Jobs, Enterprise and Innovation has indicated that a new piece of legislation will be published early in the new year to address the perceived loophole in Irish Copyright Law which was said to exist in the wake of the EMI v UPC case (reported at : www.bailii.org/ie/cases/IEHC/2010/H377.html.
It is surprising that this move appears to come before the release of the much anticipated Copyright Law Review Group report, which was a Government born initiative.
You may recall that in the EMI v UPC case, Justice Charlton in the High Court held that Irish copyright law did not provide for any kind of injunctive relief which permitted the blocking or filtering of websites on the Internet.
Accordingly, internet service providers could not be obliged by the Courts to block sites like “The Pirate Bay” where users can use file sharing software to unlawfully download copyright materials.
It would appear that the new law is primarily aimed at satisfying a number of industry players (to include EMI) who have called for Government action in the wake of the UPC decision, a case that clearly identified that Irish law did not provide for injunctive relief of the type sought by the music industry.
It is also interesting to hear that the Government still intend to proceed with this new legislation even in light of the more recent decision from the European Court of Justice (Scarlet Extended SA (“Scarlet”) v Societe belge des auteurs, compositeurs et editeurs (“SABAM”), Case C-70/10) where it was held 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”. In that case the Court indicated that EU legislation did not allow for a Court to award injunctions which ordered ISPs to implement filtering technology to prevent unlawful file sharing on its network. See our earlier blog on 24 November 2011 below.
The Irish Government will therefore have to tread carefully as regards the nature and form of the proposed legislation which it introduces as presumably otherwise such legislation could go beyond the remit of current EU law.
