EMI Records Ltd and others v British Sky Broadcasting Ltd and others

20 March 2013

Author: Peter Guzhar

Peterg

[2013] EWHC 379 (Ch), 28 February 2013.

In a recent case, the High Court ordered certain Internet Service Providers, including BT, Everything Everywhere, TalkTalk, Telefonica, BSkyB and Virgin Media to block access by users to specific file-sharing websites.  File-sharing websites act as hosts for users to upload material such as audio and video files, which can then be downloaded by millions of users worldwide.  Under the Copyright Designs and Patents Act 1988 (CDPA), a Court may grant an injunction against an Internet Service Provider where the service provider has knowledge of another person using the service to infringe copyright.  This case was brought by ten different record companies claiming on their own behalf, and as representatives of British Recorded Music Industry Ltd and Phonographic Performance Ltd.    

Under Section 97 CDPA, if the Court is satisfied that the Defendants were Internet Service Providers, that the users or the operators of Websites had infringed Copyright using the Defendant’s Service, and that the defendants had actual knowledge of the infringements, the Court can order the Defendants to block the offending websites.  The Internet Service Providers concerned had already agreed the terms of the injunction with the claimants and the court approved the terms of the injunction without any requirement being imposed to formally serve the operators of the file sharing websites.  The website operators were held to be liable as the sites were targeted at a UK audience, and the operators were also held to be liable for the copyright infringements of their users.  The case may potentially strengthen the position of those hoping to protect their property rights, as they can now require Internet Service Providers to help to control file sharing websites.

The case indicates that the Courts are trying to take a forward thinking and flexible approach in order to keep up with developments in technology.  However, the order made against the Internet Service Providers will not prevent file sharing websites from closing under one name and opening under another.  In determining whether the order was a proportionate means of protecting the rights of rights holders, the Court acknowledged that the ease by which blocking measures could be circumvented was a relevant factor.  However, the Judge stated that even if a blocking measure only prevented a minority of users from accessing Pirate websites, this was still reasonably effective.    

It is likely that following this success for rights holders seeking to protect their material from copyright infringement, more cases will be brought against Internet Service Providers for Blocking Orders, in an effort to curb and curtail the activities of pirate websites.      

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