UK HIGH COURT, DECISIONS OF 20 FEBRUARY AND 2 MAY 2012, DRAMATICO ENTERTAINMENT LTD V. BRITISH SKY BROADCASTING LTD, [2012] EWHC 268 (CH), AND [2012] EWHC 1152 (CH)

The UK High Court has ordered five of the six largest UK Internet service providers (ISPs) to block UK user access to the well-known file sharing website The Pirate Bay.

In our October 2011 IP newsletter we reported the first grant of the English High Court of an injunction requiring an ISP to implement blocking measures to prevent its users from accessing a website supplying infringing film and television program content.1

The injunction in that case (Newzbin2) was made under section 97A of the Copyright, Designs and Patents Act 1988 (CDPA 1988) which gives UK courts the "power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright."  

On 27 April 2012, the same judge, Mr Justice Arnold, made a similar order in the Dramatico case requiring five of the six largest UK ISPs to block access to The Pirate Bay (TPB), a website describing itself as the world's largest BitTorrent tracker. TPB provides an organized directory of content from which users can select content of their choice for which they then download from TPB the relevant torrent file. This file in turn is used by the BitTorrent software on the user's computer to download the pieces of the chosen content uploaded by other users.

The case was brought by eight record companies on their own behalf and in a representative capacity on behalf of the other members of BPI (British Recorded Music Industry) Limited. In his February 2012 ruling on the merits the judge held that:

  • TPB users in the UK who have accounts with the ISPs were infringing the record companies' copyrights in their sound recordings by copying them on a large scale.
  • TPB users in the UK were also infringing by communicating the copyright sound recordings to the public within section 20 CDPA 1988.
  • TPB itself was also infringing, by authorizing UK users to infringe, and TPB was jointly liable for the infringements of those users, on the basis that they and the users acted pursuant to a common design to infringe copyright.

No claim of infringement by "communicating to the public" was made against TPB itself. This was because of the pending reference to the Court of Justice (CJEU) by the Court of Appeal in the Football Dataco case2. In that case the English Court of Appeal has asked the Court of Justice whether "communication to the public" occurs where the communication originates or where it is received (or possibly both). If the answer to this question is the former then the English court may not have jurisdiction over TPB for the purposes of its own alleged infringements under section 20 CDPA because the TPB servers are located outside the UK.  

Conclusion

In the UK copyright owners are taking advantage of the existing forms of protections already available to them against online infringement under the CDPA 1988, whilst the controversial anti-piracy measures under the Digital Economy Act 2010 have yet to be implemented. The judgments in Newzbin and Dramatico provide comprehensive and clear guidance to other copyright owners seeking to obtain similar blocking orders under section 97A CDPA 1988.