In the latest of a long line of decisions granting site-blocking injunctions against ISPs under s.97A CDPA, and only 2 weeks prior to the AGs opinion in UPC Telekabel, Arnold J granted an order in favour of six major film studios, requiring the six main UK ISPs to block access to two websites, TubePlus and SolarMovie ("the Websites"), which provided access to infringing streams of films and television programmes. The Websites did not host the infringing content themselves, but rather contained searchable databases which users could click through to the host sites of the content in question. In the case of TubePlus, users were also able to download the content. This ruling continues the growth in the UK of site-blocking orders as a key tool in a rightsholder's toolbox for tackling online piracy.
Arnold J considered the facts of this case were materially the same as FAPL v BskyB, in which ISPs were ordered to block access to FirstRow, a website streaming live football matches.
On the question of the "communication to the public" right under Art. 3 (1) Information Society Directive (s.20 CDPA), Arnold J acknowledged that it is still uncertain whether the mere provision of a hyperlink constitutes a "communication to the public", and that this issue is the subject of current references to the CJEU in the Svensson, C More Entertainment and Bestwater cases (please see our previous alert on these references here.
Notwithstanding this unclear area of law, Arnold J found on the facts that both the operators and users of the Websites communicated the copyright works to the public. The actions of the operators (as in the FAPL v BskyB) case "went beyond the mere provision of hyperlinks linking to sources of copyright works…they were intervening in a highly material way to make the copyright works available to a new audience". Indeed, users of the Websites would have found it difficult to access the content directly from the host sites otherwise. Alternatively, it was clear that the host sites communicated the works to the public, and the operators were at least jointly liable for this. Furthermore, the majority of the users of the Websites not only provided links to the infringing content but also uploaded the content to the host sites, and the combined effect of these acts amounted to a communication to the public, which was ultimately authorised by the operators of the Websites.
The ISPs in question did not contest the order, which is the usual course in such actions.
Although not ground-breaking in the light of the previous decisions by Arnold J, this ruling follows the initial extension in FAPL v BskyB of such blocking orders under s.97A CDPA to websites which stream content. The judgment also contains a useful summary of the principles established by the many recent CJEU rulings in relation to the "communication to the public" right.
Please see here for our previous alert on the FAPL v BskyB case.
The full judgment can be seen here: http://www.bailii.org/ew/cases/EWHC/Ch/2013/3479.html