Are steps being taken to make pirated content less accessible?

Two recent events – one an agreement overseen by the Intellectual Property Office and the other a decision by the High Court – suggest that access to pirated content for consumers may become more difficult.

Intellectual Property Office negotiates 'anti-piracy agreement'

The Intellectual Property Office ("IPO") has overseen a recent agreement which will see search engines (including Google and Bing) and the creative industries work together to stop consumers being led to copyright infringing websites. The parties involved have signed a Voluntary Code of Practice dedicated to the demoting and removal of links to infringing content from the first page of search results. The stated aim is to reduce the visibility of infringing content in search results by 1 June 2017.

High Court Decision - Football Association Premier League Ltd v British Telecommunications

Background

The Football Association Premier League ("FAPL") – the governing body of the Premier League football competition – sought an injunction against the six main retail internet service providers (BT, EE, Plusnet, Sky, Talktalk and Virgin, together the "ISPs") in the UK requiring them to block or impede access by their customers to infringing content on specific 'Target Servers'.

Although FAPL was formally the only applicant, the application was supported by several other rightholders and was actively supported by five of the defendants (BT, EE, Plusnet, Sky and Virgin) who had an interest in the subject matter of FAPL's rights. The remaining defendant (Talk Talk) did not support the application, but did not oppose it either.

The motive behind the application was said to be to combat the growing problem of live Premier League footage being streamed without the consent of FAPL (or its licensees) on the internet. Since the court's previous ruling in FAPL v Sky, consumers were increasingly using infringing streaming servers as opposed to paid subscription services because:

• the skill and difficulty in finding set-top boxes, media players and mobile devices apps that could connect to infringing streaming servers had fallen dramatically;
• it was now possible to access several high-quality infringing streams;
• a greater proportion of UK consumers believed that access to such devices and apps was lawful, than believed it was lawful to access infringing file-sharing websites; and
• infringing streaming servers had started to move offshore and did not cooperate with rights-holders' requests to take down infringing content promptly or at all.

The Law

In order to obtain an injunction, FAPL needed to bring copyright infringement proceedings against the ISPs. To do this, they needed to demonstrate:

1. The ISPs were service providers;
2. The users or the operators of the Target Servers infringe FAPL's copyrights;
3. The users or the operators of the Target Servers used the ISPs services to do that; and
4. The ISPs had actual knowledge of this[1].

FAPL had no problem establishing that the ISPs were service providers [2], that the ISPs were used to commit the infringing acts and that the ISPs had actual knowledge of the infringement. The difficulty was in proving that the users and the operators of the Target Servers had infringed FAPL copyrights.

FAPL successfully argued that the users of the Target Servers were infringing FAPL's works because copies of the works were automatically created in the memory of whichever device they used to watch the live stream. FAPL also argued that the operators of the Target Servers had infringed FAPL's copyright rights and provided a number of effective explanations in this regard[3].

Decision

The court ordered that a blocking injunction be granted against specific listed Target Servers. This was the first time a Blocking Order had been sought in respect of streaming servers, as opposed to specific websites. The Order granted differs from blocking orders previously granted in a number of ways:

• The Blocking Order is a 'live' blocking order i.e. it only has effect when live Premier League match footage is being broadcast.
• The list of Target Servers are to be re-set each match week during the Premier League season, ensuring any new infringing servers identified can be blocked.
• The order is only for a short period (18 March 2017 until 22 May 2017) to enable an assessment of its effectiveness with a view to FAPL applying for a similar order to over the 2017/2018 season.
• The order requires a notice to be sent to each hosting provider each week when one of its IP addresses is subject to blocking.
• Interestingly, the order provides recourse for operators of the streaming services and any customers of the defendants affected by the order in the form of permission to apply to set aside or vary the Order

What does this mean?

Whilst the FAPL v British Telecommunications case involved the application of deep-rooted principles from FAPL v Sky, it is significant that this is the first order in respect of streaming servers. This suggests that the court is willing to hold ISPs accountable to prevent access to pirated content through any means, not just via websites. In addition, the application being supported by five of the six defendants suggests that the ISPs wanted the blocking order to be granted in order to protect themselves if they subsequently blocked a live stream. Alongside the recent announcement from the IPO, it indicates that third parties are being forced to take piracy more seriously. It remains to be seen however if these measures will reduce consumers' use of pirated content.

[1] Section 97A of the Copyright, Designs and Patents Act 1988

[2] Within the meaning of regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013

[3] See paragraphs 30 – 40 of the judgement, FAPL v British Telecommunications [2017] EWHC 480 (Ch)

This article was written by Freddie Law and Lydia Fernandes. For more information, please contact Freddie on +44 (0)20 7427 6522 or at freddie.law@crsblaw.com or Lydia on +44 (0)20 7438 2104 or Lydia.fernandes@crsblaw.com