Meeting Halfway: The Increasing Role Of Intermediaries In Protecting UK Intellectual Property Rights Online

The last two decades of the internet have dramatically reshaped how we do business and consume creative content. During that time, the internet has become widespread and truly global. This has meant that the role of internet intermediaries (e.g. internet service providers, online marketplaces, search engines) have become a focus in combating intellectual property infringement in the online world. This has raised some questions as to who should be responsible for the costs of compliance and how to limit the impact of any restrictions on lawful internet users.

The UK High Court has recently provided some guidance regarding the power of the courts in the UK to grant relief against intermediaries in the context of copyright and trademark infringement. This Commentary considers some of the threshold requirements and discretionary factors that will guide the Court's discretion. The rulings emphasise a need for a balanced approach, citing that intermediaries usually have no direct involvement in the creation of infringing goods but are uniquely placed to stop infringing activity.

Growth of the Internet and the Sharing Economy

The United Nations Information and Communication Technologies Task Force estimate that by the end of 2014, three billion people, i.e. 40 percent of the world population, will be using the internet. In many regions of the world, the percentage of individuals using the internet is significantly higher, such as in Europe, where it is estimated that it will reach 75 percent by the end of the year. This has inevitably meant that e-commerce now accounts for a sizeable part of most developed economies (in the UK, it already accounts for nearly 20 percent of the country's total turnover), and its role in the developing world is growing at a rapid pace. More and more people are also turning away from physical formats for audio/visual content and towards digital downloads and internet-based streaming services. These trends have cast internet intermediaries into gatekeeper roles and also enabled the growth of more collaborative and horizontal business models such as P2P marketplaces and social media.

These developments have a number of implications for combating intellectual property infringement. Firstly, it is often the case that the identity and location of primary infringers are more difficult to pin down, which makes pursuing online infringement much more difficult. Rights holders have to dedicate significant resources to monitor infringing activity, and when such activity is found, it is often very difficult (if not impossible) to identify the actual infringers themselves. Secondly, the fact that the transition to an online environment has significantly reduced the barriers to entry means that rights...