Seán Sherlock (Cork East, Labour)

In the EMI v. UPC High Court judgment of 11 October 2010, Mr. Justice Charleton decided that he was constrained by the wording of the Copyright and Related Rights Act 2000 and could not grant an injunction in respect of infringement of copyright against an information service provider, ISP, in the circumstances of "mere conduit". Accordingly, he stated that Ireland was in breach of its EU obligations in that respect.

"Mere conduit" provides that if an information service provider does not initiate a transmission or modify the material contained in a transmission and does not select the receiver of the transmission, it is granted a "safe harbour" against liability by virtue of the e-commerce directive. However, this does not affect the power of the courts to require service providers to terminate or prevent copyright infringements.

Two EU directives, namely, the copyright directive of 2001 and the enforcement directive of 2004 specifically require that the holders of copyright, authors, music composers, lyricists, record producers, etc., are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

My Department had considered that injunctions were already available under section 40(4) of the Copyright and Related Rights Act and the inherent power of the courts to grant injunctions, which are equitable and discretionary remedies, granted according to settled principles, developed by the courts. However, this was not the court's view in the case.

Having examined the High Court judgement referred to, which was extremely long and complex, the Deputy will be aware that my Department sought the advice of the then Attorney General as to the implications of the judgment and any legislative changes which might be required arising from it.

In furnishing his advice on the issues raised, the Attorney General indicated it would be prudent to consult both with his office and with the Department of Communications, Energy and Natural Resources with regard to any implementing measures arising from the ruling concerned to ensure that any such measures do not impose any unnecessarily onerous obligations on the Internet service providers.

Accordingly, my Department has been in consultations with both the Office of the Attorney General and the Department of Communications, Energy and Natural Resources as to the terms of any legislative instrument which should be made in this area and I expect to consult interested parties to the case very soon about proposed action in this respect.

It is important to note that my Department does not propose to introduce a "three strikes" regime for disconnection from the Internet, as has been introduced by France and the United Kingdom, but simply proposes to provide explicitly for injunctions to be granted, as obligated by the two EU directives I mentioned earlier.

Additional information not provided on the floor of the House.

All other member states of the European Union would have powers to grant such injunctions enshrined in their domestic legislation by virtue of their transposition of the aforementioned two directives.

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