Wednesday, May 18, 2011

Contrasting Recent Internet Copyright Cases

I wrote an article (available here) for the Sunday Business Post on 8 May contrasting two recent Internet Copyright Cases - the opinion of the Advocate General of the ECJ in Scarlet v SABAM (Press Release Full text in French) and the English High Court judicial review regarding the Digital Economy Act, R. (British Telecom & TalkTalk) v Secretary of State for Business, Innovation and Skills.

In the Scarlet case, the Advocate General issued an opinion against a Belgian court order requiring an ISP to block and filter material which is in breach of copyright. The opinion strongly emphasised the human rights at stake, as expressed in the EU Charter of Fundamental Rights and the Lisbon Treaty. For example, he said the court order unduly restricted the right to privacy of communications and the right to protection of personal data. He acknowledged that such rights could be restricted by law, but considered that the court order was not sufficiently accessible, clear or predictable.

In the British Telecom and Talk Talk case, the English High Court rejected most challenges to Britain’s 2010 Digital Economy Act, which allows blocking of sites that infringe copyright, and ‘‘three-strikes’’ style disconnection for users who breach copyright. Mr Justice Kenneth Parker found that the new scheme laid down by the Act would improve the existing process which involves copyright holders applying to court to seek to identify copyright infringers. The role of ISPs will be ‘‘passive’’, in that they react to notices of infringement drawn up by copyright holders. The holders send the notices to the ISPs which then send them on to customers. While fundamental rights such as privacy and freedom of expression are affected, Parker J. held that the British parliament had struck a proportionate balance between those rights and the property rights of copyright holders. He emphasised that the British government had extensively consulted copyright holders and ISPs before enacting the legislation, and he deferred to Parliament in choosing between policy options.

In Ireland, there have been a number of court cases about the role of ISPs in copyright infringement. In the most recent one, EMI v UPC last October, Mr Justice Peter Charleton decided that he could not grant an injunction restraining UPC from making available to the public sound recordings which infringed copyright. He found that s. 40 of the Copyright and Related Rights Act 2000 did not include an explicit power to authorise an order of this type, as it covered only removal of files, not blocking or diverting access.

At the end of the article, I said that there will be a need for detailed debate in Ireland on the implications of the English and Belgian cases, and the appropriate balance to be struck between the competing rights and interests. A mere superficial amendment of our 2000 Act will not be an adequate response.

Since the article was published, it has been announced that the Irish Government is to review copyright law, by means of a Copyright Review Committee consisting of Dr Eoin O'Dell, Ms Patricia McGovern and Professor Steve Hedley. Submissions to the Copyright Review Committee should be sent to or posted to Copyright Review, Room 517, Department of Enterprise, Jobs and Innovation, Kildare Street, Dublin 2. Submissions should be received by close of business on 30 June.