Paramount Home Entertainment International Ltd & Ors v British Sky Broadcasting Ltd & Ors

For an injunction under section 97A of the Copyright, Designs and Patents Act 1988, the claimant must establish that the defendant is a service provider, that users or website operators infringe copyright, that they use the provider’s service for the infringement, and that the provider has actual knowledge of it.

A website which systematically catalogues, moderates and links users to infringing streams may itself communicate copyright works to the public where its intervention makes the works available to a new audience. Operators may also be jointly liable for communications by host websites and may authorise users’ infringements. Blocking orders must nevertheless be proportionate.

The claimants, major film studios, sought website-blocking injunctions against six United Kingdom internet service providers under section 97A of the Copyright, Designs and Patents Act 1988. The application concerned SolarMovie and TubePlus, websites which catalogued and linked users to streams and, in some cases, downloads of films and television programmes hosted elsewhere.

The defendants did not oppose the application and agreed the proposed orders. The central issues were whether the website operators and users infringed copyright, whether the defendants’ services were used for those infringements, whether the defendants had actual knowledge, and whether blocking orders would be proportionate.

1. Jurisdictional requirements. The court had to be satisfied that the defendants were service providers; that users or operators of the Websites infringed copyright; that they used the defendants’ services to do so; and that the defendants had actual knowledge of that use. The defendants were service providers within regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.
2. Communication to the public by operators. Applying the settled approach developed in the earlier section 97A decisions, the operators’ systematic aggregation, categorisation, moderation and presentation of links materially intervened to make copyright works available to members of the public. This went beyond the mere provision of hyperlinks. The operators therefore communicated the works to the public within section 20 of the Copyright, Designs and Patents Act 1988. Alternatively, the host websites communicated the works and the operators were jointly liable.
3. The court acknowledged unresolved questions concerning hyperlinks, framing, technical means and licensed sources, including questions referred to the Court of Justice. Those uncertainties did not alter the conclusion because the Websites’ intervention was materially greater than simple linking. Users who uploaded content to host sites and supplied links also communicated the works to the public. The operators authorised those infringements.
4. The users and operators used the defendants’ services to infringe copyright. Emails enclosing evidence of infringement, together with service of the application and supporting evidence, gave the defendants actual knowledge. None denied that knowledge.
5. The orders were proportionate. Although the defendants advanced no objection, the burden remained on the claimants to establish that blocking was appropriate. Subject to amendment of a recital in two orders, the court made the orders sought.