The High Court has excluded business users from a copyright infringement warning scheme involving UPC Communications Ireland Limited, while requiring the injunction to be reviewed five years after the order is perfected.
In a supplemental judgment delivered on 21 May 2015, Mr Justice Cregan addressed issues left open after his substantive judgment of 27 March 2015. The court appended a draft order and said it would hear the parties on its terms; the judgment does not state that the order was perfected or that the parties made further submissions.
The scheme concerns UPC’s fixed broadband service and alleged infringement of copyright in sound recordings by making them available online. Under the appended draft, UPC would send a subscriber a first and second cease-and-desist letter after respective notifications from the music companies. On a third notification, UPC would notify the plaintiffs, who could then seek a Norwich Pharmacal order to identify the subscriber and address. The plaintiffs could subsequently seek termination of the service or other relief directly against the subscriber. The draft says those applications would not be opposed or consented to by UPC, and that UPC would seek no costs from the proceedings or compliance.
The judge declined to include an independent adjudicator in the court-directed process. He accepted UPC’s submission that such a process would add a layer before court proceedings and said a reluctant defendant should not be required by injunction to take part in quasi-judicial adjudication. The parties could agree to an adjudicator in future.
Business users are excluded from the draft scheme. The judge said the proposed single educational letter for business customers would create a separate regime, adding operational cost and complexity. He said the issue was not res judicata and could be reviewed later in light of experience.
The draft order would require the plaintiffs to pay 20% of UPC’s qualifying capital expenditure, capped at €940,000. The judgment’s discussion says the contribution should be paid over five years. The draft also caps notifications at 2,500 a month and limits the scheme to fixed broadband subscribers.
The injunction is to continue for as long as the problem remains, rather than expire after four or five years. The court would review the matter five years after perfection of the order. The judge declined to require regular reporting to the plaintiffs or an audit, and omitted a data protection clause, saying compliance with data protection legislation did not need to be repeated in the order.