Copyright, Streaming Websites And Website Blocking Orders: Where Are We Now?

In the recent case of Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others,1 the High Court granted an order to several major film studios blocking access to four film and television programme streaming websites. The decision is the latest in a long line of cases in which copyright owners have sought website blocking orders and provides a useful overview of the requirements that have to be met in order for such an application to succeed.

Background

Legislation

Article 3(1) of the Copyright Directive provides that communicating a copyright work to the public without the copyright owner's consent is an infringement of copyright.

Under section 20 of the Copyright Designs and Patents Act 1988 (CDPA), a communication to the public of a copyright work is an act restricted by the copyright in a literary, dramatic, musical or artistic work, a sound recording or film, or a broadcast. Section 20(2) of the CDPA defines "communication to the public" as a communication to the public by electronic means, which includes:

broadcasting the relevant work; and making the relevant work available to the public by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. Section 97A of the CDPA gives the High Court the power to grant an injunction against an internet service provider (ISP) where the ISP has actual knowledge of another person using its service to infringe copyright. In determining whether a service provider has "actual knowledge", the court will take into account all matters which appear to be relevant in the particular circumstances.

Section 97A was inserted into the CDPA for the purposes of implementing Article 8(3) of the Copyright Directive into domestic law. The recitals of the Copyright Directive make it clear that there should be effective sanctions in domestic law for infringements of the rights set out in the directive and that such sanctions should be effective, proportionate and dissuasive and should include the possibility of seeking injunctive relief.

Case law

It is believed that the court first exercised its power under section 97A of the CDPA in 2011, when it upheld an application by film producers for an order that an ISP, BT, take measures to block access to a website, Newzbin, which provided indexing and search services for a worldwide internet discussion system called Usenet (Newzbin). The court ordered BT to block access to the Newzbin website within fourteen days and ruled that the order should cover not only the offending website, but any other IP address or URL whose sole or predominant purpose was to enable or facilitate access to the site .

In the years since Newzbin, the court has considered a long line of applications for similar orders as a result of which a number of principles to be applied when...