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Ireland / Court of Appeal / [2016] IECA 231

Sony Music Entertainment Ireland Ltd & Ors v UPC Communications Ireland Ltd

Deciding Body type:
National Court/Tribunal
Deciding Body:
Court of Appeal
Decision date:

Key facts of the case: 

This is an appeal brought by UPC Communications Ireland Ltd. (UPC). UPC, is a non-infringing internet service provider (ISP). In the judgment under appeal Cregan J. made an order requiring UPC to implement what is sometimes known as a form of graduated response system (GRS) within its network for the benefit of Sony Music and the other respondents who are the relevant copyright holders. The GRS order in question which was made by the High Court requires UPC to send each relevant subscriber a “cease and desist” letter upon receipt of notification of the first and second copyright infringement notifications which it receives from the rightholders. On receipt of the third copyright infringement notice, UPC is then required to send the relevant rightsholders a notification that the particular subscriber has been the subject of three such notifications. The rightsholders are then entitled to apply to court for an order terminating the subscriber’s internet broadband service.The order further provides that the rightholders are required to pay 20% of any capital expenditure incurred by UPC with a cap of €940,000 on each such expenditure. The order provides that the matter is to be listed for review before the High Court in five years from the date of the perfection of the order, but the order is otherwise to last indefinitely. The appeal concerns the jurisdiction of the High Court to grant GRS injunctions of this nature directed at non-infringing ISPs.

The copyright holders (Sony) maintain that the effect of both Article 8(3) of Directive 2001/29/EC and s. 40(5A) of the Copyright and Related Rights Act 2000 is to grant such jurisdiction. UPC maintains that the court has no jurisdiction to make an order of this kind. It submits that the order actually made is more appropriate to that of a specialist regulator vested with appropriate expertise and which is best placed to make policy decisions of this kind and that the order is not one which a court required to make judgments based only on legal rights (including equitable rights) and wrongs could appropriately make.

Outcome of the case:

The appeal was dismissed. It was held that the GRS order which had been made by the High Court was one which the High Court had jurisdiction to make and that the order further satisfied the requirements of Article 8(3) of Directive 2001/29/EC, as transposed by s. 40(5A) of the 2000 Act.