Court Orders Blocking of Piracy Site Under New Site-blocking Framework

Intellectual Property Singapore Document Number: 1438662Document Number: 1438662 Client Alert February 2016 For further information please contact Andy Leck Principal +65 6434 2525 Andy.Leck@bakermckenzie.com Cheah Yew Kuin Local Principal +65 6434 2644 Yew.Kuin.Cheah@bakermckenzie.com Baker & McKenzie.Wong & Leow 8 Marina Boulevard #05-01 Marina Bay Financial Centre Tower 1 Singapore 018981 www.bakermckenzie.com Court orders blocking of piracy site under new site-blocking framework On 11 February, 2016 the High Court ordered Network Service Providers ("NSP") Singtel, Starhub, M1, MyRepublic and ViewQuest to block piracy site Solarmovie.ph by March 17 2016. Solarmovie features links to the latest Hollywood movies and TV shows. The order was made pursuant to an application by the Motion Picture of America's (MPA) member studios under new site-blocking provisions in the Copyright Act. New site-blocking framework The new site-blocking framework under the Copyright Act came into force in December 2014. It provides for a process by which the copyright owners, exclusive licensees and performers can obtain "blocking orders" against flagrantly infringing websites without having to first establish an NSP's liability for copyright infringement. Under the new framework, the plaintiff must prove that : (a) the NSP's services have been or are being used to access the subject online location to commit or facilitate infringement of the Plaintiff's copyrighted material; and (b) the website is a "flagrantly infringing" online location. In assessing whether a website is "flagrantly infringing", the Court will consider a number of non-exhaustive factors listed in sections 193DDA and 252CDA of the Copyright Act. They include whether the primary purpose of the website is to commit or facilitate copyright infringement; whether it makes available or contains directories, indexes or categories of means to commit or facilitate copyright infringement; whether the owner or operator of the online location demonstrates a disregard for copyright generally; whether the online location contains guides or instructions to circumvent protection measures implemented to restrict copyright infringement; whether other jurisdictions have made similar blocking orders against the website; and the volume of traffic at or frequency of access to the online location. The framework's intention is to target websites which blatantly disregard copyright and not those which primarily offer legitimate materials such as YouTube and cloud storage services. The new no-fault framework is intended to provide a more efficient mechanism for rights holders to address the issue of piracy sites. The previous framework required rights holders to sue an NSP for copyright infringement if it refused to comply with take-down requests. It was largely unutilized due to the high cost and uncertainties associated with establishing an NSP's liability for copyright infringement. Notification requirements Before making an application for a court order, rights owners will be required to send cease and desist letters to the owners of the websites intended to be blocked and also notify NSPs of their intentions. They are also required to 2 Legal Update notify such website owners of the applications which have been made and serve a copy of such application on affected NSPs. This is to afford affected parties an opportunity to challenge the application. However, cognizant of the difficulties involved in tracking down website owners, the Court is empowered to dispense with owner notification requirements if it is satisfied that reasonable efforts have been made to determine their identity and address. Comments The granting of the site blocking order against Solarmovie and the short time frame taken for the order to be made (about 2 months) will likely encourage more rights holders to seek this remedy. As we know, such offending websites can migrate between domain names with relative ease. So the effectiveness of the new framework in addressing online piracy remains to be seen. The challenge will be whether the present framework is flexible enough to allow rights owners to overcome migration and avoidance techniques which the offending websites are likely to adopt. ©2016. All rights reserved. Baker & McKenzie.Wong & Leow is a member of Baker & McKenzie International, a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.