November 8, 2021
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 five streaming websites at 123movies.online/123moviesfun.ch, europixhd.net, levidia.ch, tinyzonetv.to and watchserieshd.tv (the Target Websites). Wiggin acted for the studios. The ISPs did not oppose the application.
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 said that the Target Websites, which were all operated outside the jurisdiction, were targeted at users in the UK.
The studios also said that the operators of the Target Websites infringed copyright under s 16(2) of the CDPA by authorising infringing acts of copying by UK users of those sites.
The evidence showed that in all cases the content was transmitted from a third-party site that hosted the content, rather than directly from the Target Websites. The Target Websites provided links to content on those other sites and indexed and categorised the links in a way that enabled users to search for, select and access content easily. The Target Websites also provided additional information about the listed content, such as the genre, synopsis, running time, release date, language and a rating, and active steps were taken to maintain the sites. Editorial control was clearly exercised, and steps were taken to encourage users to access content. Profits were generated from advertising. There was no indication that any of the Target Websites had a legitimate purpose: they were focused on the provision, without charge, of content that had been made available, or was scheduled to be made available, for commercial purchase.
Following TuneIn Inc v Warner Music UK Ltd  EWCA Civ 441, Mrs Justice Falk was satisfied that the activity of the Target Websites amounted to “communication”:
- the works were made available such that users could access them from a place and at a time of their choosing;
- the operators of the Target Websites were aware that they were providing access to the works; and
- access was made available in a straightforward way, enabling users to enjoy them where they would otherwise not be able, or it would be difficult, to do so, which active intervention by the operators meant that the fact that the content was hosted by a third party did not prevent their activities amounting to “communication”.
Falk J was also satisfied that the communication of the content was to “the public”:
- the Target Websites were generally available to and accessed by a large and indeterminate number of persons;
- if necessary, the communication was also to a “new public”;
- the Target Websites were operated for profit; and
- the rebuttable presumption that the CJEU held to exist in Case C-160/15 GS Media BV v Sanoma Media Netherlands BV applied, i.e., there was nothing to rebut the presumption that the posting of the links to illegally published content was made with full knowledge that the works were protected by copyright and that there was no consent to internet publication.
Falk J also concluded that the Target Websites targeted UK users:
- the default language of the Target Websites was English;
- the Target Websites provided access to English language content;
- there had been significant numbers of visits to the sites from the UK; and
- there was evidence that advertising was targeted at the UK market.
Falk J also found that the Target Websites authorised infringing acts of copying by users under s 17(1) of the CDPA, and indeed positively encouraged and facilitated it, for the purposes of s 16(2). The fact of extensive copying by users could be inferred from the quantity of material indexed on the Target Websites, their purpose of making the content available and the extent of traffic to the sites. As for authorisation, the nature of the relationship was the provision by the Target Websites of a user-friendly environment to locate and access content. The sites provided the means to infringe, and infringement by copying was an inevitable consequence of accessing the material. The Target Websites could control access to the available content but had taken no steps to prevent infringement. Their activities amounted to the purported grant of the right to do the acts complained of.
As for the requirements of s 97A, Falk J was satisfied that the court had jurisdiction and there was no doubt that the ISPs were service providers. Further, copyright had been infringed by communication to the public and authorising infringement and it was clear that the operators of the Target Websites had used the ISPs’ services to infringe. It could also reasonably be inferred that subscribers to the ISPs’ services used their services to access the Target Websites, given their popularity in the UK and the ISPs’ market share. The ISPs had actual knowledge of the use of their services to infringe copyright, given the advance notice and the sample evidence that they had been given of the studios’ application, as well as the service of the application and supporting evidence on them, and indeed their expressed lack of opposition to the order.
As for the discretion of the court to grant an order under s 97A, Falk J was satisfied both that the injunction was necessary to prevent or at least reduce damage to the Studios and that the grant of an injunction under s 97A had proved to be the most effective means of impeding and dissuading infringing activity of this nature. It would have no impact on legitimate trade. The order was also proportionate and not unduly complicated and there was no indication that it would be difficult or costly to implement.
In Falk J’s view, the injunction struck a fair balance between protecting the Studios’ IP rights and the ISPs’ and Target Website operators’ rights to freedom of expression under Article 10 of the European Convention on Human Rights. The public had no legitimate interest in accessing copyright works in infringement of the Studios’ rights and to the Studios’ significant detriment. Any interference with their rights and those of the ISPs was justified by the legitimate aim of preventing such infringement and the order contained appropriate safeguards.
Accordingly, Falk J granted the order sought. (Columbia Pictures Industries Inc v British Telecommunications Plc  EWHC 2799 (Ch) (22 October 2021) — to read the judgment in full, click here).