Internet service providers and the fight against online copyright infringement
6 November 2014
Section 97A of the Copyright Designs and Patents Act 1988 empowers the High Court to "to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright".
In the last 5 years, both the film and music industries have relied upon s.97A to force ISPs to block access to infringing websites.
The cases establish that in order for the High Court to grant a s.97A injunction four matters must be established:
the defendant must be a service provider
users and/or the operators of the target website must infringe the claimants' copyrights
users and/or the operators of the target website must use the defendants' services to do that, and
the defendants must have actual knowledge of this.
Most recently in 1967 Ltd v British Sky Broadcasting  EWHC 3444 (Ch), the High Court granted an injunction to a number of record companies requiring five internet service providers (ISPs) to block access to 21 websites which had been providing access to commercially available music without authorisation from the relevant copyright owners.
Together, the claimants own (or are exclusively licensed to use) the copyright in most commercially available sound recordings in the UK.
The websites which were the subject of the order operate as Bittorrent indexing websites, providing a directory, which users can search to select content and download the relevant torrent file.
Arnold J found that users of the websites had infringed the claimants' copyright and that the operators were also in breach of the right of communication, had authorised others to infringe, and were jointly liable for infringements committed by users.
The operators communicated the copyright works to the public by electronic transmission. Their role was not passive, and they intervened in an active and highly material way to enable users to access and download content easily.
The communication was to a new public which had not been considered when the communication was first authorised, and the acts of communication were targeted at users in the UK. The claimants also submitted evidence demonstrating that, on average, the number of UK visitors to Bittorrent websites which have been the subject of blocking orders has declined by 87%.