The European Court of Justice (ECJ) has ruled on a question of jurisdiction under the Brussels Regulation (44/2001/EC) in proceedings for copyright infringement.
The High Court has ordered several major film studios to block access to four film and television programme streaming websites, under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) (section 97A).
Section 20 of the CDPA, implementing Article 3 of the Copyright Directive (2001/29/EC) (Article 3), provides that the 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, film or broadcast. Communication to the public means a communication to the public by electronic transmission and includes broadcasting the work, and making the work available to the public by electronic transmission so that the public may access it from a place and at a time individually chosen by them (section 20(2), CDPA).
If the four jurisdictional requirements for section 97A are satisfied, an injunction can be obtained against an internet service provider (ISP). These are that: the defendants are ISPs; the users or the operators of the websites infringed copyright; the users or the operators of the websites used the defendants' services to infringe; and the defendants had actual knowledge of the infringement.
In Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others, the High Court ordered the six main UK ISPs to block access to two television and film streaming websites ( EWHC 3479).
In Svensson and others v Retriever Sverige AB, the European Court of Justice established that the mere provision of access by a hyperlink would normally amount to a communication within the meaning of Article 3, and (if the relevant content was not authorised by the rights owner to be freely available on the internet) would normally amount to a communication to the public (see News brief “Linking and framing copyright material: guidance at last”, www.practicallaw.com/4-558-3665).
Several major film studios, P, applied for website-blocking orders under section 97A. The defendants, B, were the six main ISPs in the UK. The targets of the application were four websites that provided access to streams of a large range of films and television programmes without the consent of the relevant copyright owners (the websites).
The websites did not host the content, but provided a database that could be searched by users, who would then click on a link to get to the content, which was hosted by third parties. The websites categorised, moderated and provided other editorial oversight over the content. The websites were directed at users in the UK, among other places.
The court ordered B to block access to the websites as the four jurisdictional requirements for section 97A were satisfied. B had actual knowledge of the infringement because they had been given advance notice of P’s application by email.
In deciding whether the website operators had infringed copyright, the court referred to previous decisions that had widely interpreted the meaning of a communication to the public. The court noted that, where there is a communication:
● That does not use a different technical means to that of the original communication, the communication must be to a new public; that is, a public that was not considered by the authors concerned when they authorised the original communication.
● That uses a different technical means to that of the original communication, it is not necessary to consider whether the communication is to a new public.
At the time of the earlier decision in Paramount, it was not certain if the mere provision of a hyperlink would constitute a communication within the meaning of Article 3. The ECJ had resolved this issue in Svensson.
Whether the provision of hyperlinks will constitute a communication to the public (when the means of communication is not a different technical means) will depend on whether there is a new public, which, in turn, will depend on precisely what was authorised by the copyright owner at the stage of the initial communication. In this case, the court had already held that the website operators had intervened in a highly material way to make the copyright works available to a new audience.
Referring to evidence about the popularity of the websites in the UK, as advertisements were aimed at the UK market, and English was the default language of each website, the court held that the websites had targeted a sufficient section of the public in the UK.
After considering proportionality and discretion, the balance of the respective rights between the relevant parties came down in favour of granting the injunction.
This latest decision in the relatively recent line of cases in which copyright owners have sought website-blocking injunctions under section 97A clearly illustrates the requirements that a copyright owner has to meet to succeed in its application.
Case: Paramount Home Entertainment International Ltd and others v British Sky Broadcasting Ltd and others  EWHC 937 (Ch).