The background to this case lies in the October 2010 judgment of Charleton J. in EMI v. UPC where he held that Irish law did not permit an order to be made against an ISP requiring blocking of websites and went on to say that: "In failing to provide legislative provisions for blocking, diverting and interrupting internet [filesharing] Ireland is not yet fully in compliance with its obligations under European law." Immediately after that decision there was some sabre-rattling from the music industry which threatened to sue the State for damages caused by filesharing, on the theory that if blocking laws were in place then filesharing would go away. (Ignoring research such as that from Ofcom which has found that site blocking is easily evaded.)
Since then, however, the music industry appears to have fallen silent on this threat, presumably on the basis that it would get what it wanted through a statutory instrument which would permit blocking. This statutory instrument isn't yet in place but has been promised by mid January 2012, making the timing of this case all the more interesting - on the face of it, the music industry seems to have jumped the gun by bringing an action before that legislation is in place. Curiously, the normally vocal IRMA have nothing on their website and no press release seems to have been put out - perhaps this was intended as a shot across the bow of the State in case the statutory instrument doesn't meet music industry demands? Or perhaps the music industry feels the need to ramp up the pressure in light of the Data Protection Commissioner's ruling against Eircom's three strikes system?
As to the legal basis for the action, the music industry will presumably be relying on the well-known principle in Francovich v. Italy under which damages are possible against a state for failure to transpose a directive if three conditions are met:
first, that the result prescribed by the directive should entail the grant of rights to individuals; secondly, that it should be possible to identify the content of those rights on the basis of the provisions of the directive; and thirdly, that there should be a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties.While I'm not aware of any other action of this sort being brought against a country for failure to implement copyright law, the third element would seem to be problematic for the music industry - establishing a causal link between Irish law and filesharing will be difficult, particularly given the evidence from elsewhere that blocking is ineffective.
Can the High Court seriously order the Executive or Legislature to act? Or just award damages for the State's failure to fulfill an obligation? I value the principle of a separation of powers, especially when it comes to industries that are entirely dependent on power of the state to maiatain a business model. The whole thing seems entirely specious in any case.
ReplyDeleteYes sort of because the law is already defined under European law which as a member they are bound by treaty to enact by putting in place domestic laws that meet those obligations and the law.
DeleteGive it to them then impose a sales tax on the industry to pay for the litigation costs now and into the future, also ban any site selling music into the country that refuses to collect said tax (There will be a law allowing th irish government to do this after all).
ReplyDeletelol so goodbye itunes then - you really think apple would pay this tax? you're just doing what they want - stopping the sale if digital music int he country...
Deletewell the eu like canada has 1 download != 1 lost sale precedent on the books. If all retail channels stop selling music in ireland. What would that mean to all the piracy claims if there was no way to get the content for sale, and therefore no lost sales for the copyright holders.
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ReplyDeleteThis is incredibly unhelpful.
DeleteWhat EU directive are they talking about? The european parliament has been rather pro-human rights.
ReplyDeleteArticle 1.b of directive 2009/140/EC.
Measures taken by Member States regarding end-users access’ to, or use of, services and applications through electronic communications networks shall respect the fundamental rights and freedoms of natural persons, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms
and general principles of Community law.
Any of these measures regarding end-users’ access to, or use of, services and applications through electronic communications
networks liable to restrict those fundamental
rights or freedoms may only be imposed if they are appropriate, proportionate and necessary within a democratic society, and their implementation shall be subject to adequate procedural safeguards in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with general principles of Community law, including effective judicial protection and due process. Accordingly, these measures may only be taken with due respect for the principle of the presumption of innocence and the right to privacy. A prior, fair and impartial procedure shall be guaranteed, including the right to be heard of the person
or persons concerned, subject to the need for appropriate
conditions and procedural arrangements in duly substantiated cases of urgency in conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms. The right to effective and timely judicial review shall be guaranteed.’
The Electronic Commerce Directive (Directive 2000/31/EC of 8 June 2000) states:
Delete"(45) The limitations of the liability of intermediary service providers established in this Directive do not affect the possibility of injunctions of different kinds; such injunctions can in particular consist of orders by courts or administrative authorities requiring the termination or prevention of any infringement, including the removal of illegal information or the disabling of access to it."
Also see the Injunctions Directive (Directive 98/27/EC of 19 May 1998) for international "consumer protection" injunctions.
There is no duty according to EU directives to allow courts to ban internet access to certain sites. There is - as well - no European law that grants the freedom of communication. Some countries have laws that may be used to restrict the freedom of internet communication. In Germany there was strong opposition against those laws - even when they were limited to cases of child pornography. In most European countries courts have ruled that blocking internet access to certain sites is not a legal remedy in a democratic society.
ReplyDeleteThe claim of the music industry is not founded. But of course threatening a country with high damages is another piece in the lobbying puzzle in order to put commercial interests in front of free speech.
It's interesting that corporations have grown to the point where they are multi-national (super-national?) entities that can take on foreign governments and have the potential to coerce them into enforcing their ideas.
ReplyDeleteSo the music industry, because they were too late to recognise digital music as the carrier of the future, are now playing catch up by forcing governments to dance to their tune. And as for taxpayers paying for "lost sales" there is no way. I am 58 and have been a music fan since I was a teenager. I bought music in all it's formats, but I'll be damned if the music industry will charge me for something I didn't buy and didn't want in the first place. I'll go to jail first.
ReplyDeleteOur government seems to bend the knee to everyone except the people that elected them. What sort of spineless cretins are in charge of this country?
stop SOPA ireland!!!!!
ReplyDelete