This article looks at the recent decision of The Football Association Premier League Limited V British Telecommunications and Ors. [2017] EWHC 480.

In a recent case, the High Court ordered internet service providers (ISPs), including Sky, Talk-talk, Virgin Media and BT amongst others, to block access to streaming servers (via their IP address) from providing unauthorised access to Premier League match footage, subject to certain conditions.

Background

For the first time in the UK, an injunction has been sought requiring ISPs to block access to streaming servers giving unauthorised access to copyright content.

The Premier League's revenue for licensing the right to provide coverage of Premier League matches to broadcasters throughout the world is £1.7billion a year. However, in light of new advances in technology, UK individuals are increasingly able to access unauthorised footage of live football matches through a host of mediums, such as set top boxes, media players and mobile streaming applications.

In the past, orders had been made against ISPs under s.97A of the Copyright, Designs and Patents Act 1988 (CDPA) to block access to websites that provided unauthorised access to copyright content. However, the judge in this case found that in light of the new advances in technology, allowing UK individuals to access unauthorised footage of live football matches through various devices such as set top boxes, media players and mobile streaming apps, the previous blocking orders were no longer able to prevent the growing majority of infringements. The reason being, that these devices did not rely upon access to a specific website, but rather, they were able to connect directly to streaming servers via their IP addresses.

The Case

The Premier League sought an order, pursuant to section 97A of the Copyright, Designs and Patents Act 1988 (CDPA) which implements Article 8(3) of the InfoSoc Directive 2001/29/EC enabling the High Court 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.'

The Judge, Mr Justice Arnold of the High Court, considered the matters required for the Order and found that the defendant ISPs, were making 'acts of communication to the public' in accordance with section 20 of CDPA 1988. Additionally, the court held that the ISPs had full knowledge of the infringing activities by the nature of them having to monitor the streaming servers and were carrying out such activities with the intention to profit from the unauthorised streams (in the form of advertising revenue).

Arnold J had to consider the overriding issue of whether such an Order was proportionate having regard to the competing rights of those affected. In weighing this up, the Judge held that the Premier League's (and its licensees') legitimate interest to prevent such an infringement of its copyright was wholly justified.

The judge considered that the main effect of the Order on the ISPs was likely to be an increase in operating costs to effect the blocking, so in reality there would be minimal interference with the ISPs freedom to carry on business. The fact that five out of six ISPs were supportive of the application for the injunction was additional evidence to show that the order would not negatively impact the ISPs freedom to operate.

The New Order

The Order granted is quite distinct from previous orders for the following reasons:

The order will block websites at the time when Premier League footage is being broadcasted live. Often referred to as a 'live' blocking order.

The list of target servers are to be 're-set' each match week during Premier League Season. This is to include any new servers and ensure that old servers are not blocked if they no longer stream infringing footage.

The order is only until the period when the 2016/2017 Premier League season ends.

By way of safeguard, the order requires a notice to be sent to the hosting provider each week notifying it that one of its IP addresses is subject to blocking. This provides hosting providers or operators of the servers the opportunity to set aside or vary the Order if they claim to be adversely affected.

Conclusion

The result of the case demonstrates the development in enforcement of intellectual property rights, and most notably, it highlights the importance of keeping up with rapidly changing technological advancements when protecting copyright. It has opened up scope for more creative enforcement strategies in order to protect intellectual property rights in the future.