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Copyright infringement and blocking injunctions against ISPs

Author
Yasmin Malik

Trainee

London

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09 November 2021

On 22 October 2021, the UK High Court handed down a judgment that clarifies the existing law on the requirements for granting blocking injunctions against internet service providers (ISPs) where there has been copyright infringement by website operators. 

Application for a blocking injunction

In this case, Columbia Pictures Industries Inc & Ors v British Telecommunications Plc & Ors [2021] EWHC 2799 (Ch), six members of prominent studio groups (including Disney, Netflix and Warner Bros.) made a joint application for a website blocking order to be granted against six large UK ISPs. 

The application was sought on grounds that the operators of five particular websites infringe copyright by making available for streaming film and television content owned by the studios (by providing hyperlinks to content hosted on third-party sites, with the internet user then streaming the content via embedded players or pop-up windows), and that they do this through the services that the ISPs knowingly provide to them. The five websites were all operated outside the jurisdiction and therefore outside the reach of the UK courts. The ISPs did not seek to oppose the application and the blocking order was granted pursuant to section 97A Copyright, Designs and Patents Act 1988, which provides copyright owners with effective recourse via ISPs to prevent online infringements in the event that website operators are unresponsive to takedown requests.

Copyright infringement

The website operators were found to infringe copyright by communicating the copyright protected works to the public and authorising acts of copying by UK-based users of the websites. The judgment focussed on the straightforward, user-friendly way in which the websites provide access to copyright protected works; providing users with hyperlinks to third-party sites, and indexing and categorising the links in such a way that allows for searching content and eliciting additional information on the works (such as the synopsis and running time).

The relevant principles set out in the recent “TuneIn” Court of Appeal case (Tunein Inc v Warner Music UK Ltd & Anor [2021] EWCA Civ 441) were applied in this judgment.

Communication to the public

It was found that the copyright works were communicated to the public by the website operators for the following reasons:

  • the public could access the works from a place and at a time of their choosing;
  • the website operators were clearly aware that they provide access to the works and this is the purpose of the sites;
  • it was easy for users to locate and enjoy the works – content was provided in a straightforward manner (even though for one website clicking on the link opened a pop-up, which made it easier for users to recognise that content was being accessed via a third party site); 
  • there was “active intervention” by the website operators to make the content available to users in a readily accessible manner, making it irrelevant that content was actually hosted on third party sites; and
  • it wasn’t necessary to show that works have actually been accessed by users.

The “public” requirement was met on the basis that the websites were available to the public and were in fact accessed by a very large number of people. Where works were originally communicated to the public via an online subscription service, the judge went further and held that the websites communicated these works to a “new public”. That is, a public that was not envisaged by the owner of the works when the original communication was authorised. It was found that the websites objectively targeted the public in the UK through: the default language being English; providing access to English language content; having a high number of visits from users in the UK; and advertising that targeted the UK market.

Additionally, it was considered that website operators making a profit from such activities, which involve the use of hyperlinks, are expected to check that the works are not illegally published. In this case, the website operators must have known that they did not have the consent of the owners. 

Authorising acts of copying

The website operators were found to infringe copyright further by authorising acts of copying by users.
Part of the streaming process involves the user’s device creating copies of the content in its memory, therefore amounting to an act of copying by users. The judge inferred “extensive copying” by reference to the large quantity of content available on the websites, the fact that the purpose of the websites is to make content available and the high volume of traffic to the sites. 
By providing a user-friendly environment to locate and access content, and consequently the means for a user to infringe, it was found that the websites “positively encourage and facilitate” infringement and therefore authorise it.
 
Read the full judgment.