1967 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 websites where users or operators infringe copyright through the provider’s service and the provider has actual knowledge of that use.

Website operators may themselves communicate works to the public, authorise user infringements and be jointly liable with users where they actively facilitate and promote access to infringing content. Blocking orders must be proportionate, including in relation to providers and affected third parties. The court may require safeguards allowing affected subscribers to seek discharge or variation.

Record companies sought orders requiring five major United Kingdom internet service providers to block or impede access to 21 BitTorrent indexing websites. The defendants did not oppose the application and confined themselves to negotiating the wording of any orders.

The court considered whether the defendants were service providers, whether users and website operators infringed copyright, whether the infringements used the defendants’ services, whether the defendants had actual knowledge, and whether the proposed orders were proportionate. The central issue was whether the statutory requirements for website-blocking relief under section 97A were satisfied.

1. The defendants were service providers within regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002 and section 97A of the Copyright, Designs and Patents Act 1988. The court adopted its earlier reasoning in Dramatico v Sky (No 2).

2. United Kingdom users infringed copyright by copying recordings under section 17 and communicating them to the public under section 20. In the BitTorrent swarms, the communication was by electronic transmission, was to the public and was targeted at the United Kingdom. The reasoning in EMI v Sky, FAPL v Sky and Paramount v Sky remained applicable after Svensson.

3. The operators communicated recordings to the public because they actively and materially enabled users to access and download recordings. They also authorised infringements and were jointly liable with users. The operators’ conduct was active rather than merely passive, including where websites aggregated links instead of storing torrent files.

4. Users and operators used the defendants’ services to infringe copyright, and the defendants had actual knowledge through the claimants’ notifications, application and evidence.

5. The court retained a duty to assess proportionality even though the defendants advanced no opposition. The proposed orders were proportionate, having regard to the interests of the claimants, defendants and affected third parties. Evidence indicated that previous blocking orders had substantially reduced United Kingdom visits to comparable BitTorrent websites.

6. The court ordered the defendants to block the Target Websites. Consistently with Cartier v Sky, the orders were to permit affected subscribers to apply for discharge or variation, and the blocking page was to identify the applicants and that right.