Following last year's failed High Court bid to force an ISP to adopt a 3 strikes-style regime to deal with pirates, the Big Four record labels are set to get their way through a change in the law. If adopted, proposals published yesterday by the Irish government would allow copyright holders to hold ISPs liable for infringements and take out injunctions against them.

After reaching a negotiated settlement with ISP Eircom to deal with illicit file-sharing, the Irish Recorded Music Association (IRMA) took ISP UPC to court after it refused to implement a similar scheme. IRMA wanted UPC to disconnect persistent pirates, UPC insisted there was no legal basis for doing so.

The case went to the High Court but although Mr Justice Peter Charleton acknowledged that recording companies were being harmed by Internet piracy, he said that laws to cut off file-sharers were not enforceable in Ireland.

“It is not surprising that the legislative response laid down in our country in the Copyright and Related Rights Act 2000, at a time when this problem was not perceived to be as threatening to the creative and retail economy as it has become in 2010, has made no proper provision for the blocking, diverting or interrupting of internet communications intent on breaching copyright,” he said in his judgment.

By not having this legislative mechanism in place, Justice Charleton said that Ireland is not in compliance with its obligations under European law. The only thing the courts can force an Internet host to carry out, he said, is the removal of infringing material.

Now, through its ‘Consultation on Amendment to Copyright and Related Rights Act, 2000’, the Irish government is taking steps to change legislation to close this apparent loophole.

“It must be emphasised that this proposed amendment is not about the introduction of a statutory regulatory regime in relation to copyright infringement such as the French ‘Hadopi’ system or the ‘Three strikes’ regime set out in the Digital Economy Act in the United Kingdom,” notes the proposal.

Nevertheless, while they do not implement a statutory regime, adoption of the proposals could yield a similar result, a situation welcomed by IRMA.

“We have always been looking for the right to take injunctions against ISPs if they are not dealing with illegality on their networks,” said IRMA chief executive Dick Doyle.

The proposals published yesterday are open for public consultation with a closing date of July 1st, just over a week away. Submissions should be sent to [email protected] or posted to the Intellectual Property Unit, Department of Jobs, Enterprise and Innovation, Kildare Street, Dublin 2.

The proposals come on the back of the news that due to an administrative computer error, in October last year Eircom wrongly sent out around 300 “first strike” warning letters to innocent subscribers. The error is now being investigated by the Irish Data Protection Commissioner.