Blocking order issued against six UK ISP's by England and Wales High Court

As reported by Managing Intellectual Property, on 28 February 2013, Justice Arnold of the Chancery Division of the England and Wales High Court decided a copyright case in favour of music companies against six UK internet service providers (ISP's). The record companies claimed that their copyright was being infringed upon by certain websites and asked the Court to issue a blocking order against the ISP’s. 

The applicable legal provision was Section 97A of the Copyright, Designs and Patents Act, 1988. Justice Arnold framed four questions which needed to be answered before the Court could establish jurisdiction under Section 97A. First, that the Defendants were service providers, secondly, the users and/or the operators of the Websites infringe the copyright of the Claimants, thirdly, the users and/or the operators of the Websites use the Defendant’s services to infringe the copyright and fourthly, the Defendants had actual knowledge that their services were being used to infringe copyright. Justice Arnold answered all the questions in the affirmative. 

Q1. Are the Defendants service providers? 

Justice Arnold stated that Defendants were service providers within the meaning of the 1988 Act as this question had already been settled in Dramatico v. Sky (No. 2). Moreover, he noted that none of the Defendants had contended that they were not service providers. 

Q2 a. Do the users of the Websites infringe the copyright of the Claimants?

The Claimants contended that the users of the Websites infringed the copyrights in two ways: first, by copying the recordings as within Section 17 of the 1988 Act and secondly, by communicating the sound recordings to the public within section 20 of the 1988 Act. 

It was noted by Justice Arnold that when users of the Websites select a torrent file and then download the associated content files onto his or her computer, they are clearly copying the content in the files. When content files comprising of copyrighted work is copied by a person who does not have a license from the owner of the copyright, it amounts to infringement of the copyright. Since all the Websites are popular torrent websites which have accounts with the Defendants, the UK users of these Websites were held to be infringing the copyright of the Claimants by copying. 

With respect to the issue of communicating the sound recordings to the public,two questions were framed by Justice Arnold. First, whether there was communication of the sound recording via electronic transmission and secondly whether such communication was meant for a new public, which is “a public which was not taken into account by the right holders when authorizing the distribution of the recording” . The recordings could be downloaded by any person at any time or place of his/her choice through the medium of websites. Therefore, there was communication of the sound recordings via electronic transmission. Additionally, these recordings are available to all the users of the Websites, a large indeterminate body of people without them having to obtain the recordings from authorized sources. Thus, the Court held that the communication through the Websites was meant for a new public. 

Q2 b. Do the operators of the websites infringe the copyright of the Claimants? 

Claimant contended that the operators of the websites infringed the copyright of the Claimants in three ways: first, the operators communicated the sound recordings to the public, secondly, the operators committed the tort of authorizing the infringement by the UK users of the websites and thirdly, the operators are liable as accessories for the infringement by UK users. 

The Court held that the operators of websites communicated the sound recordings to the public as they actively intervened in making the copyrighted sound recordings available to the public. The Court also held that the operators of the websites authorized the infringement by the UK users as they do not merely enable or assist the infringement but they sanction and approve the infringement. Moreover, as the business model of the websites was such that the infringement was not merely ancillary to the operations of the website but the objective and intention of its operations itself, the Court held that the operators committed the tort of authorization. Finally, the Court also held the operators jointly liable with the users for the infringement as they induced, incited and persuaded the users to commit the infringement and as they had a common intention with the users of the Websites to commit infringement. Additionally, the operators of the websites were profiting from this infringement. 

Q3. Do the users and/or operators of the Websites use the Defendants’ services to infringe on the Claimants’ copyrights? 

After analyzing the statistical evidence presented about the usage of the Defendants’ services and the recorded infringement (¶ 87 of the order), Justice Arnold held that there was substantial use of the Defendants’ services by the users and the operators to infringe on the Claimants’ copyright. 

Q4. Did the Defendants have actual knowledge that their services were being used to commit infringement? 

Weekly notifications had been sent to the Defendants by MarkMonitor about these infringing activities of the users and the operators of the websites. Moreover, the Claimants had written to each of the Defendants prior to the commencement of court proceedings, drawing to their attention the infringing activities committed by the users and the operators of the websites. Hence, the Court came to the conclusion that the Defendants had actual knowledge that their services were being used to commit infringement. 

Justice Arnold, also relied on case law such as 20C Fox v. BT and Dramatico v. Sky to hold that a blocking order was a proportionate and effective remedy. (¶¶104-106 of the order). Therefore Justice Arnold granted a blocking order in favour of the Claimants.

The relevance of this blocking order granted by the England and Wales High Court in the Indian context can be understood when viewed in conjunction with this 2011 Delhi High Court order of Justice Manmohan Singh and this 2012 Madras High Court order of Justice Chandru. Amlan and Prashant had covered the respective orders here, here and here. These decisions indicate the trend of the Indian High Courts to issue blocking orders to ISP’s against websites in order to prevent copyright infringement. This blocking order issued by the England and Wales High Court indicates a similar trend in the UK as well. Justice Chandru modified his initial order to block only specific links and not entire file sharing websites. Justice Arnold also clarifies that “the orders are narrow and targeted ones" with requisite safeguards. In such an event, this seems like a welcome step towards the protection of the intellectual property rights of record companies whose copyrights are being infringed upon massively through the internet.