January 10, 2022
Six well known film studios (Columbia, Disney, Netflix, Paramount, Universal and Warner Bros), as the owners of copyright in many films and TV programmes, applied to the High Court for a website blocking order under s 97A of the Copyright, Designs and Patents Act 1988 against the six major UK internet service providers (ISPs) in relation to fifteen streaming websites (Target Websites). The ISPs did not oppose the application. The application was determined ‘on the papers’ by Mr Justice Adam Johnson. Wiggin acted for the studios in this case.
The studios said that the Target Websites infringed their copyright by communicating to the public the studios’ copyright protected film and TV content without a licence, contrary to s 20 CDPA. The studios also said that the operators of the Target Websites infringed copyright by authorising acts of copying by UK users of those sites under s 17(1) of the CPDA for the purposes of s 16(2).
The evidence showed that the Target Websites enabled users to stream motion pictures and TV programme content by indexing and aggregating links to unauthorised copies of such content hosted on third party locations. The Target Websites arranged and indexed the content in a user-friendly way, so that it could be searched for and accessed easily. In each case, the content was accessed by users through an embedded player on the Target Website. Although the Target Websites did not themselves host or transmit the content, from a user perspective the content appeared to stream directly through the Target Website. All the Target Websites generated profit through advertising, and therefore operated for profit.
Following the relevant case law, Johnson J was satisfied that there was infringement under s 20 CDPA:
- the purpose of the Target Websites was actively to engage with end-users and to provide ready access to copyright materials in a straightforward way, which amounted to “communication” (TuneIn Inc v Warner Music UK Ltd  EWCA Civ 441);
- there was little doubt that such “communication” was “to the public” as the Target Websites were generally available and had been accessed by many users, which was indeed their purpose;
- it was not necessary in this case to show that the “communication” complained of was to a “new public” because any original communication here (by making the relevant work(s) available on the hosting sites) was not authorised; the operators of the Target Websites, who operated them for profit, were presumed to know of the protected nature of the works and of the lack of consent by the copyright owners in relation to the hosting sites. (The facts were therefore akin to the situation addressed in Case C-160/15 GS Media BV v. Sanoma Media Netherlands BV  Bus LR 1231);
- the Target Websites were targeted at UK end-users because they were all English language websites and according to the data were popular in the UK; in many cases they also displayed advertisements with prices in Sterling.
Johnson J was also satisfied that there was infringement under s 17(1) CDPA:
- the streaming process caused the user’s computer or device to create copies of the content in the memory of the device, which was an act of infringement; and
- there was authorisation in the relevant sense because the activities of the Target Websites involved the purported grant of the right to access the materials they made available.
Johnson J also said that it was clear that the operators of the Target Websites used the services of the ISPs to infringe copyright and it was reasonable to infer that subscribers to the broadband services used them to access the Target Websites, given their popularity in the UK and the ISPs’ market share.
Further, the ISPs had knowledge of the use of their services to infringe copyright, having been given notice of this application and served with the supporting evidence.
Finally, as a matter of discretion, it was right to make the Order sought because:
- it was necessary to prevent or reduce damage;
- it would not be costly or difficult to implement;
- it was the most effective means available of impeding the infringing activity; and
- any interference with the rights of the ISPs or of the public was justified by the legitimate aim of preventing copyright infringement.
Overall, therefore, it was proportionate to make the Order sought. (Columbia Pictures Industries Inc v British Telecommunications Plc  EWHC 3438 (Ch) (20 December 2021) — to read the judgment in full, click here).