Queensberry Promotions Ltd v British Telecommunications Plc & Ors

An application for an injunction under section 97A of the Copyright, Designs and Patents Act 1988 may be made by a copyright owner or an exclusive licensee. An agreement granting an exclusive licence of the right to apply for such an injunction is not, by itself, an exclusive licence within section 92(1), because section 97A provides a remedy rather than an exclusive copyright right. The court should not use its equitable jurisdiction to grant a copyright remedy to a person who lacks standing at law. Standing may instead be established by an assignment from the copyright owner of the cause of action under section 97A.

The claimant sought orders requiring internet service providers to block or impede access to servers streaming infringing footage of professional boxing events. An earlier blocking order had been made, supported by most defendants.

For events outside the United Kingdom, the claimant relied on an agreement from the overseas copyright owner which purported to grant an exclusive licence of the right to make applications under section 97A of the Copyright, Designs and Patents Act 1988. The central issue was whether that agreement gave the claimant standing to seek the injunction.

1. The court had already made the requested blocking order. The new issue concerned the claimant’s standing in relation to copyright in the clean feed of an event held outside the United Kingdom.

2. Article 8(3) of the Information Society Directive requires member states to enable rightholders to seek injunctions against intermediaries. Section 97A implements that provision. It should also be construed, so far as possible, consistently with Articles 4(b) and 11 of the Enforcement Directive, which require provision for authorised licensees where national law permits.

3. Section 97A should therefore be interpreted as permitting both copyright owners and exclusive licensees to apply for an injunction. Section 92(1), however, defines an exclusive licence by reference to authorisation to exercise a right which would otherwise be exercisable exclusively by the copyright owner. That refers to one of the exclusive rights listed in section 16(1), not to the procedural or remedial ability to apply under section 97A.

4. Section 101(1) does not alter that conclusion. A purported assignment of the right to apply under section 97A is not a partial assignment of copyright within section 90(2), because it is not an assignment of an act which the copyright owner has the exclusive right to do. The agreement was therefore not an exclusive licence within section 92(1) and did not confer the rights of an assignee.

5. The proposed alternative based on the court’s inherent equitable jurisdiction was rejected. It would be contrary to equitable principle to grant a copyright-infringement remedy to a person who was neither the copyright owner nor an exclusive licensee and consequently lacked standing at law. The claimant obtained standing when the copyright owner assigned to it the cause of action under section 97A.

Not stated in the judgment.