Virgin Media claims rival operator Eir is in breach of copyright by including Virgin’s free-to-air channels on Eir’s new Apple TV 4K set-top box.

Virgin is seeking an injunction restraining Eir from broadcasting all its free-to-air channels and its own Virgin Media One and Two channels.

Eir claims Virgin must offer the free-to-air channels on non-discriminatory terms in accordance with the 2009 Broadcasting Act.

Proceedings by Virgin against Eir were admitted to the fast-track Commercial Court on Monday by Mr Justice David Barniville.

Virgin seeks an injunction preventing infringement of copyright and a declaration Eir has no entitlement, under the Broadcasting Act or otherwise, to broadcast or disseminate the channels via the Apple TV product. It also seeks damages.

Virgin’s vice-president of legal, Peter McCarthy, says in an affidavit his company and Eir previously had a channel distribution agreement, since 2013, but that expired last September and no new agreement was put in place.

Discussions recommenced in September but by October 14th last, Eir complained that Virgin had refused or neglected to engage properly in accordance with its Broadcasting Act obligations.

Platform

Eir said it was launching its Apple TV service on October 17th and threatened injunction proceedings if Virgin didn’t immediately confirm its approval, Mr McCarthy said.

Virgin refused to do so and also argued the legislation did not cover this “over-the-top” platform – channels transmitted over a third-party network, third-party app or third-party system.

When Virgin was refused an assurance its free-to-air channels would not be included in Apple TV, it brought proceedings.

On Monday, when the case was admitted to the commercial list on consent between the parties, Paul Coughlan, for Virgin, said Eir was carrying the TV channels on the Apple TV service where there was no agreement and where a clear objection had been made.

Rossa Fanning SC, for Eir, said the net issue was whether the service was covered by section 77(11) of the Broadcasting Act. His side maintained that, if it was, the service should be offered on non-discriminatory terms.

Counsel said Eir had made a commercial offer in relation to the matter as long ago as last January.

Mr Justice Barniville noted a timetable for progressing the case had been agreed between the parties and adjourned it to next March.