In Paramount Home Entertainment v BSkyB the High Court has considered another application for a website blocking order made by a number of major film studios. Mr Justice Arnold ordered the UK’s six main internet service providers to block access to two websites that provided links to unauthorised copies of films and TV programmes. The judgment follows the familiar principles developed by Arnold J in a string of recent applications for website blocking orders made by copyright holders under section 97A of the Copyright Designs and Patents Act 1988.
Section 97A of the Act empowers the court to grant an injunction against an ISP, where the ISP has actual knowledge of another person using its service to infringe copyright. The claimants in this case sought an order in relation to two websites, www.solarmovie.so (SolarMovie) and www.tubeplus.me (TubePlus). The websites provided access to a range of films and TV programmes without the copyright owners’ consent. The claimants’ evidence was that over 99% of the content accessible via each site was likely to be protected by copyright.
The sites’ operation appeared to be similar to the online sports aggregation service FirstRow, against which Arnold J had granted a s. 97A injunction in FAPL v BSkyB. As in FAPL, neither site hosted the content in question, but rather provided a database that could be searched by users, with operators ensuring that all content is logically categorised, referenced and moderated. SolarMovie appeared, as a matter of policy, not to provide access to downloads. On SolarMovie links to content were supplied by registered users of the site, subject to approval by the site operators. TubePlus provided access to downloads in addition to streams, but it was unclear how far links were provided by users and the operators of the site. For both websites, users who wished to access content were provided with a number of links in response to searches or when browsing. Clicking on a link enabled the user to view a stream of the chosen content on an embedded player.
For the court to have jurisdiction to make the orders sought by the claimants, it had to be established that:
(a) the defendants were service providers (and the judge had no doubt that they were);
(b) users and/or the operators of the websites infringed the claimants’ copyright;
(c) users and/or the operators used the defendants’ services to infringe the claimants’ copyright; and
(d) the defendants had actual knowledge of this infringement.
The defendants did not resist the application.
The claimants contended that the site operators infringed their copyrights in two ways: first, by communicating copyright works to the public within the meaning of section 20 of the Act (or alternatively by acting as joint tortfeasors with the operators of the host websites); and secondly, by authorising infringement by users who submitted links to infringing content to the sites (and who also communicated that content to the public).
Communication to the public
Section 20 of the Act confers rights of communication to the public on copyright owners and gives effect to Article 3(1) of the Copyright Directive. In considering the issue of what constitutes a “communication to the public”, Arnold J referred to a series of nine judgments in which the Court of Justice of the European Union (CJEU) considered the concept of “communication to the public”. Recent case law established that where there is a communication which does not use a different technical means to that of the original communication, it is necessary to show that the communication is to a new public, i.e. a public that was not considered by the authors concerned when they authorised the original communication.
Arnold J was doubtful whether he was correct to have said in FAPL that the operators of FirstRow were using a different technical means to that of the original communication in accordance with the reasoning of the CJEU in ITV Broadcasting Ltd v TVCatchup Ltd. The operators of FirstRow were undoubtedly using a different technical means (transmission via the internet) to that of the copyright owners (transmission by terrestrial/cable and/or satellite), but they were arguably not using a different technical means to that of the UGC sites. Even if that was so, however, he remained of the view that they were communicating the copyright works to a new public.
The question of hyperlinks as communication to the public
Arnold J acknowledged it was arguable that the mere provision of a hyperlink was not sufficient to constitute a communication to the public, particularly if the hyperlink in question was not directly to a source of the copyright work.
On this point he referred to several references currently pending before the CJEU: Svensson v Retriever Sverige AB, C More Entertainment AB v Sandberg and the German case BestWater International GmbH v Mebes. All of these cases focus on whether a hyperlink can amount to communication to the public.
• Svensson is a copyright claim by four journalists against a media monitoring and search service called Retriever, which made their articles available to the public by providing links in the search results on its website. The Swedish court has asked the CJEU to provide guidance on whether providing a clickable link is “communication to the public” within the meaning of Article 3(1) of the Copyright Directive, and whether a distinction should be made between “deep linking” (where users do not notice that they have been transferred to another website) and “reference linking” (where this is clear to users).
• More Entertainment is a similar reference, involving unlicensed links to TV broadcasts of Elite Series ice hockey matches which Canal+ offered as part of a pay-per-view web TV service.
• BestWater is a reference concerning a promotional film for a water filtration system that was uploaded to YouTube without the claimant’s consent. The defendants enabled visitors to their websites to view the claimant’s film. When visitors clicked on a link, this triggered viewing the film from YouTube. The CJEU has been asked to provide guidance on whether embedding in such circumstances is communication to the public. The German Federal Court’s provisional opinion was that this type of “framing” effectively “misappropriated” the work.
Having summarised the issues in these three cases, Arnold J noted that whether hyperlinking can constitute communication to the public is a difficult and controversial issue. So he found “it surprising that the Court of Justice has decided to proceed to judgment in the Svensson case without the benefit of an Advocate General’s opinion.” Nonetheless, the question before him was whether, on the current state of the law, the operators and/or users of the websites communicated the claimants’ copyright works to the public.
Did the site operators communicate the works to the public?
On the basis of the law as it presently stands, Arnold J was satisfied that the operators of SolarMovie and TubePlus had communicated the claimants’ works to the public. Relying heavily on his decision in FAPL, he found that there was no material difference between the websites in this case and FirstRow, on the basis that the site operators had “intervened in a highly material way to make the copyrighted works available to a new audience”. He noted that it would be very difficult for the public to access much of the content directly from the host sites if it were not made available by the websites. Even where the content could be accessed from the host sites, the websites simplified locating the content for the public. Even if this were not the case, the host sites communicated the claimants’ works to the public and the operators of the websites were jointly liable for this communication.
Did the site users communicate the works to the public?
While Arnold J established that the mere provision of a hyperlink does not necessarily amount to a communication to the public, it was clear from the evidence in this case that users uploaded content to the websites in addition to providing hyperlinks to infringing content. In his view, the combined effect of these acts amounted to a communication to the public by the users.
Did the site operators and/or users use the defendants’ services to infringe?
Referring to his reasoning in Twentieth Century Fox v BT, Dramatico v BSkyB and FAPL, Arnold J held that in this case both the site users and operators used the defendants’ services to infringe the claimants’ copyrights and found that the defendants had actual knowledge of the infringement, as a letter of claim was sent to them in September 2013.
This is the latest in a series of cases in which copyright owners have relied on s. 97A of the Act to obtain orders forcing ISPs to block access to infringing websites. The High Court has once again supported copyright owners in their battle against such sites. The case has been helpful in summarising the principles established by the Court of Justice of the European Union to date on what constitutes a communication to the public. It also shows that the practical effects of indexing and editorial functions, along with facilitating easy access to copyright material on a website, are important factors when assessing whether there has been a communication to the public.
One point of law highlighted by Arnold J that remains unresolved at the time of writing is the question of whether mere provision of a hyperlink can amount to a communication to the public. The CJEU’s decisions on the pending three references should provide more clarity on this issue.
Partner and Trainee Solicitor, Michael Simkins LLP
Article written for Entertainment Law Review