COLUMBIA PICTURES INDUSTRIES, INC. v BRITISH TELECOMMUNICATIONS PLC

Under section 97A of the Copyright, Designs and Patents Act 1988, the court may order internet service providers to block access to websites where the websites infringe copyright, use the providers’ services for that infringement, and the providers have actual knowledge of it. Infringement may arise where websites organise and provide access to unauthorised audiovisual content, even if the content is hosted elsewhere. Streaming may also involve authorised copying in users’ devices. The court must finally assess whether the blocking order is proportionate, effective and reasonably practicable.

Copyright owners applied on the papers for orders under section 97A of the Copyright, Designs and Patents Act 1988 requiring six internet service providers to block, or attempt to block, access to fifteen target websites. The respondents did not oppose the application.

The target websites indexed and aggregated links to unauthorised copies of films and television programmes, making the content readily accessible through embedded players. The issues were whether the websites infringed copyright, used the respondents’ services for that purpose, and whether the respondents had actual knowledge of the infringement. The court also had to decide whether the requested orders were proportionate.

1. The application was granted. The court ordered the respondent internet service providers to block, or attempt to block, access to the target websites.

2. The target websites communicated the applicants’ copyright works to the public contrary to section 20 of the Copyright, Designs and Patents Act 1988. Their active engagement with users, organisation of the content and provision of ready access amounted to communication, and the websites were directed at a UK public.

3. The court was not persuaded that a separate showing of communication to a new public was required on these facts. The original communications from the hosting sites were unauthorised. The reasoning in GS Media BV v Sanoma Media Netherlands BV [2016] Bus LR 1231 supported a presumption that operators acting for profit knew the protected nature of the works and the absence of copyright owners’ consent. No rebuttal had been made.

4. The websites also authorised infringing copying by users. Streaming caused copies to be created in users’ devices, contrary to section 17(1) of the Copyright, Designs and Patents Act 1988. The purported grant of access to the materials constituted authorisation in the relevant sense, applying the approach in TuneIn Inc v Warner Music UK Ltd [2021] EWCA Civ 441 and Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch).

5. The target websites used the respondents’ services to infringe copyright. It was reasonable to infer that UK subscribers used those services to access the websites, having regard to the websites’ popularity and the respondents’ market shares. The respondents had actual knowledge because they had been notified of the application and supporting evidence.

6. The order was proportionate. It was necessary to prevent or reduce damage, was not costly or difficult to implement, was the most effective available means of impeding the infringement, and imposed justified interference with the respondents’ and public’s rights. The court applied the approach in Nintendo v Sky [2019] EWHC 2376 (Ch).