EMI takes Irish Government to court over website blocking delays

Out-Law News | 16 Jan 2012 | 10:27 am | 3 min. read

Record company EMI has launched legal action against the Irish Government after expressing concern about the prospective contents of new anti-piracy laws.

EMI Music Ireland lodged legal documents against the Government with the country's High Court, according to the Irish Times. The company's chief executive, Willie Kavanagh, said the Government  had not sent EMI a copy of new anti-piracy laws it is due to announce this month leading him "to believe it’s unlikely to satisfy the music industry’s requirement for injunctive relief,” according to the paper's report.

In 2010 an Irish judge ruled that Ireland was not fully in compliance with EU copyright laws because of its failure "to provide legislative provisions for blocking, diverting and interrupting internet copyright theft". 

EMI Ireland and other record companies, including Sony and Universal, had asked the High Court to issue an injunction to "prevent the theft of their copyright by third parties illegally downloading it over the internet" in a case against Irish internet service provider (ISP) UPC. However, the judge said that although an injunction was "merited on the facts" of the case, he could not issue one because the country's Copyright and Related Rights Act "made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright".

In December the Irish Government announced plans to change copyright law by giving rights holders the chance to seek court orders that require ISPs in the country to ban customers' access to pirated content.

Rights holders in Ireland were dealt a blow by the country's data protection watchdog last month when it ordered Eircom, the largest ISP in Ireland, to stop using its 'three strikes' system for identifying and warning alleged illegal music file-sharers. The Office of the Data Protection Commissioner expressed concern that the system of using internet protocol addresses to identify alleged copyright infringers invades customers' privacy.

However, Kavanagh said Eircom's system was “working incredibly well”, and that other ISPs should introduce similar ones, according to the Irish Times report.

In November the European Court of Justice ruled that although the protection of intellectual property is a fundamental right under EU law, it is not "absolutely protected" and has to be balanced against other fundamental rights. It ruled that a Belgian court had not struck a "fair balance" between the rights of a music royalties collecting society and those of an ISP  and its users when ordering the ISP to filter online traffic in search of copyright infringement.

In the UK, rights holders have been calling for provisions under the Digital Economy Act (DEA) to be introduced. The Act is a controversial law that includes provisions aimed at combating online copyright infringement.

Under the DEA Ofcom, the UK's communications regulator, must draw up new regulations to enable rights holders to obtain redress against user piracy.

In a draft code of practice published in May 2010 Ofcom said that internet users should receive three warning letters from their ISP if they are suspected of copyright infringements online.

Details of illegal file-sharers that receive more than three letters in a year would be added to a blacklist, the draft code said. Copyright holders would have access to the list to enable them to identify infringers. Under the draft code, ISPs could also have to suspend users' internet access if they are found to be illegally downloading copyrighted material.

Ofcom and the Department for Culture, Media and Sport (DCMS) had been expected to publish the finalised regulations in the middle of last year, but the process has been delayed. Opponents of the DEA have challenged the legality of the measures and say the law was rushed through Parliament without proper debate when it was passed in the 'wash up' period prior to the 2010 general election.

In April last year the UK Government won a High Court ruling in which the court rejected claims made by BT and TalkTalk that the DEA violated EU laws on privacy and electronic communications. However, in October the ISPs were granted the right to appeal against that decision and although the Government said it would not hold up its efforts to enact new anti-piracy measures under the DEA, the measures have still to be introduced.

Separate rules under sections 17 and 18 of the DEA allow other anti-piracy measures to be drawn up at the behest of the Culture Secretary. Those measures would see courts decide whether to force ISPs to block access to pirated copyright works. In August the Government announced that it had no plans to bring any new regulations under sections 17 and 18 into law "at this time".

However, in November the Open Rights Group published papers uncovered through a freedom of information request detailing behind-the-scenes discussions on website blocking. The DCMS facilitated the discussions with rights holder groups, ISPs and other stakeholders.

Representative bodies from across the creative industries had detailed a plans for a new code of practice around website blocking in which ISPs would have to implement measures to cut off customers' access to content under agreed procedures. In a meeting on 19 September Culture Minister Ed Vaizey said Government did not want to introduce new regulations on website blocking "unless necessary".