EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors

Under section 97A of the Copyright, Designs and Patents Act 1988, the High Court may order an internet service provider to block access to a website where the statutory jurisdictional requirements are established and the order is proportionate.

Users who download and upload copyright works through BitTorrent may infringe by copying and communicating the works to the public. Website operators may themselves communicate works to the public, authorise infringement and be jointly liable with users where their service is actively designed to facilitate infringement.

Proportionality is context-sensitive. A blocking order may be justified even if it prevents access only for a minority of users, provided that it is necessary, targeted and proportionate.

Record companies and other rights holders applied under section 97A of the Copyright, Designs and Patents Act 1988 for orders requiring six major UK internet service providers to block or impede access to three BitTorrent indexing websites: KAT, H33T and Fenopy.

The defendants agreed the terms of the proposed orders and did not oppose them, but the court retained an independent duty to determine jurisdiction and proportionality. The issues were whether the defendants were service providers, whether users and operators infringed copyright, whether the defendants’ services were used for that infringement, whether the defendants had actual knowledge, and whether the proposed orders were proportionate.

1. Jurisdiction. The defendants were service providers. Section 97A required proof that users or operators infringed copyright, used the defendants’ services to infringe, and that the defendants had actual knowledge of that use.
2. Users’ infringement. UK users copied sound recordings when they downloaded content without a licence. Users who uploaded recordings to BitTorrent swarms communicated them to the public by electronic transmission. Applying the criteria identified in SCF v Del Corso and the subsequent CJEU authorities, the recordings were made available to a large and indeterminate class of users who had not been contemplated by authorised distribution. The communication occurred in the UK where the uploader was located in the UK. The court did not need to decide whether it also occurred where a UK downloader received the work.
3. Operators’ liability. The operators actively organised, indexed and promoted the torrent files and provided the means necessary for infringement. They therefore communicated the recordings to the public. They also authorised users’ copying and communication by sanctioning, approving and countenancing those acts, and by purporting to grant users the right to perform them. The operators and users acted pursuant to a common design and were jointly liable.
4. Use and knowledge. Both users and operators used the defendants’ services to infringe. Notifications, correspondence and the evidence served in the applications established the defendants’ actual knowledge.
5. Proportionality. The court independently assessed proportionality despite the defendants’ agreement. The balancing exercise required attention to copyright as property, freedom of expression, privacy and data protection. The orders were necessary, targeted and proportionate. Their modest implementation cost and demonstrated efficacy outweighed the Article 11 rights of the operators, users and defendants.
6. The requested blocking orders were made.

First-instance applications under section 97A of the Copyright, Designs and Patents Act 1988. The judgment describes earlier first-instance website-blocking decisions but records no appeal in the present proceedings.