Having read Mr. Sherlock's comments and the high court decision in the UPC case, I have to say that the argument being put forward by Mr. Sherlock simply makes no sense.
The Copyright Directive 2001, which Mr. Sherlock refers to, dictates that EU members will provide a system allowing copyright-holders to apply for injunctions against internet intermediaries that are being used to violate their copyright, in a manner that is at the discretion of the EU member. Ireland already has such an injunction procedure in 40(4) of the Copyright Act, as noted by Mr. Sherlock in his comments.
Where Mr. Sherlock's argument goes wrong is in his complete and utter misreading of the EMI V UPC case. In that case the use of 'filtering' as an injunctive measure was struck down. Nothing in Mr. Justice Charleton's judgement in any way shape or form overturned the usual injunctive measures that copyright holders have applied for and received in the past.
Mr. Justice Charleton's judgement has been reaffirmed strongly in the recent Scarlet v. Sabam case which Mr. Sherlock makes a passing reference to. In that case the use of filtering was found to be in violation of the rights of internet companies to do business and of the right of privacy of internet users.
Given that the EMI V UPC case struck down the use of filtering and only the use of filtering, and given that this decision has been reinforced by the Sabam case, I am utterly baffled by Mr. Sherlock's comments here.
The only thing Mr. Sherlock's SI can overturn in the EMI V UPC case is the use of filtering, but given the Sabam judgement such an SI is completely barred from offering filtering as an injunctive measure under EU law. Thus Mr. Sherlock's argument makes absolutely no sense.
David Mudkips
Posted on 19 Feb 2012 2:13 pm
Having read Mr. Sherlock's comments and the high court decision in the UPC case, I have to say that the argument being put forward by Mr. Sherlock simply makes no sense.
The Copyright Directive 2001, which Mr. Sherlock refers to, dictates that EU members will provide a system allowing copyright-holders to apply for injunctions against internet intermediaries that are being used to violate their copyright, in a manner that is at the discretion of the EU member. Ireland already has such an injunction procedure in 40(4) of the Copyright Act, as noted by Mr. Sherlock in his comments.
Where Mr. Sherlock's argument goes wrong is in his complete and utter misreading of the EMI V UPC case. In that case the use of 'filtering' as an injunctive measure was struck down. Nothing in Mr. Justice Charleton's judgement in any way shape or form overturned the usual injunctive measures that copyright holders have applied for and received in the past.
Mr. Justice Charleton's judgement has been reaffirmed strongly in the recent Scarlet v. Sabam case which Mr. Sherlock makes a passing reference to. In that case the use of filtering was found to be in violation of the rights of internet companies to do business and of the right of privacy of internet users.
Given that the EMI V UPC case struck down the use of filtering and only the use of filtering, and given that this decision has been reinforced by the Sabam case, I am utterly baffled by Mr. Sherlock's comments here.
The only thing Mr. Sherlock's SI can overturn in the EMI V UPC case is the use of filtering, but given the Sabam judgement such an SI is completely barred from offering filtering as an injunctive measure under EU law. Thus Mr. Sherlock's argument makes absolutely no sense.