The big four record labels, EMI, Sony, Warner and Universal, are suing the Irish Government over its alleged failure to stop illegal music downloads and for not implementing a statutory instrument that would give record companies to right to seek injunctions against ISPs.
It emerged last night that the companies, despite the Government promising a statutory instrument is on the way, are unhappy with the slow rate of progress.
It emerged late last year that statutory instruments were being prepared in Ireland that would have given judges the power to grant injunctions against ISPs in relation to copyright infringement cases.
This is believed to have been in response to the outcome of UPC Communications Ireland Limited’s High Court victory in October 2010 in its opposition to the "three strikes" rule sought by Warner Music, Universal Music, Sony BMG and EMI Records aimed at illegal downloading and file sharing via the internet.
In his judgment, Mr Justice Peter Charleton held that laws seeking to identify and disconnect copyright infringers were not enforceable in Ireland, regardless of the record companies’ complaints.
He said he was cognisant of the financial harm being suffered by record labels due to illegal downloading. "This not only undermines their business but ruins the ability of a generation of creative people in Ireland, and elsewhere, to establish a viable living. It is destructive of an important native industry," Charleton said.
A statutory instrument is in the works on the issue of music piracy and injunctive relief against ISPs and is expected to be published mid-January.
According to The Irish Times, the record companies had asked the State to show them the forthcoming statutory instrument but failure to show them the proposed legislation raised the companies’ concerns that the legislation would satisfy their requirements.
Legal blogger TJ McIntyre says it is likely the music industry will be relying upon a 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 file sharing will be difficult, particularly given the evidence from elsewhere that blocking is ineffective," McIntyre said.