14 March 2013

Sunk! The Court of Human Rights rejects the Pirate Bay's Complaint

Fredrik Neij and Peter Sunde Kolmisoppi founded one of the world's largest file sharing sites known as The Pirate Bay. They were prosecuted for offences under the Swedish copyright act (Upphovsrättslagen, 1960:729) and in the same process sued by various record companies and other copyright owners for copyright infringement in the Stockholm district court (Tingsrätt). After a hearing that lasted from the 16 Feb until 3 March 2009 they were found guilty of the charges and sentenced to a year's imprisonment on 17 April 2009. They were also ordered to pay damages of SEK30 million to the copyright owners.

They appealed to the Swedish court of appeal ((Svea hovrätt) which upheld their convictions but reduced their sentences and increased the damages award on 26 Nov 2010. They applied for permission to appeal to the Swedish supreme court (Högsta domstolen) but that court rejected their application on 1 Feb 2012.

On 20 June 2012 Mr. Neij and Mr. Kolmisoppi complained to the European Court of Rights that the judgment of the Swedish courts violated their right to freedom of expression under art 10 of the European Convention on Human Rights. The case came on before Mark Villiger, President, and Judges Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom and Aleš Pejchal on 19 Feb 2013.   In Neij and Another v Sweden 28 Feb 2013 the Court unanimously declared the application inadmissible.

In  reaching their decision the judges considered:
  1. Whether there had been an interference with the applicants’ freedom of expression;
  2. Whether the interference was prescribed by law;
  3. Whether there was a legitimate aim; and
  4. Whether the interference was necessary in a democratic society.
They considered those questions because art 10 (1), which guarantees freedom of expression including freedom "to receive and impart information and ideas without interference by public authority and regardless of frontiers", is qualified by art 10 (2), which subjects the exercise of these freedoms "to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ..... for the protection of the ........ rights of others."

As to the first question, the Court  decided that the a file sharing website was entitled to protection under art 10 (1) of the Convention and, 
"consequently, the applicants’ convictions interfered with their right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims."
However, there was no doubt that such interference was prescribed by law since the applicants' convictions were in accordance with Swedish copyright and criminal law.   The court was further satisfied that the interference pursued the legitimate aim of protecting copyright to the material in question and that the convictions and damages awarded pursued the legitimate aim of “protection of the rights of others” and “prevention of crime” within the meaning of article 10 (2).   Finally, "having regard to all the circumstances of the present case, in particular the nature of the information contained in the shared material and the weighty reasons for the interference with the applicants’ freedom of expression", the Court found that the interference was “necessary in a democratic society” within the meaning of art 10 (2) of the Convention.

The interesting part of the judgment was the Court's consideration of whether the interference was necessary in a democratic society.   Relying on the Court's decision in The Observer and The Guardian v United Kingdom [1991] ECHR 13585/88, [1991] ECHR 49, (1992) 14 EHRR 153, 14 EHRR 153 the judges reiterated that the test of “necessity in a democratic society” required it to determine whether the interference complained of corresponded to a “pressing social need”.   That test cannot be applied in absolute terms:
"On the contrary, the Court must take into account various factors, such as the nature of the competing interests involved and the degree to which those interests require protection in the circumstances of the case. In the present case, the Court is called upon to weigh, on the one hand, the interest of the applicants to facilitate the sharing of the information in question and, on the other, the interest in protecting the rights of the copyright-holders."
As to the weight afforded to the interest of protecting the copyright‑holders, the Court stressed that intellectual property was protected by art 1 of Protocol No. 1 to the Convention (Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, § 72, ECHR 2007‑I) [2007] ECHR 40, [2007] ETMR 24, 23 BHRC 307, (2007) 45 EHRR 36). The Court reiterated the principle that genuine, effective exercise of the rights protected by that provision does not depend merely on the State’s duty not to interfere, but may require positive measures of protection (Öneryıldız v. Turkey [GC], no. 48939/99, § 134, ECHR 2004‑XII . [2004] ECHR 657, 18 BHRC 145, (2005) 41 EHRR 20, [2004] Inquest LR 108).   The judges concluded that the respondent state had to balance two competing interests which were both protected by the Convention in which the state benefits from a wide margin of appreciation (see Ashby Donald and Others v France  [2013] ECHR 28; and Recommendation CM/Rec(2007)16 of the Committee of Ministers to member states on measures to promote the public service value of the Internet). 

Noting that the Swedish authorities were obliged not only by their copyright statute but also by the Convention to protect the copyright owners' rights, the Court found that there were "weighty reasons for the restriction of the applicants’ freedom of expression" and that the Swedish courts advanced "relevant and sufficient reasons to consider that the applicants’ activities within the commercially run Pirate Bay website amounted to criminal conduct requiring appropriate punishment. In that respect, the Court reiterated that the applicants were only convicted for materials which were copyright-protected.

The Court reiterated that the nature and severity of the penalties imposed were factors to be taken into account when assessing the proportionality of interference with the freedom of expression guaranteed by art 10 (see Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI, [2004] ECHR 692, (2005) 41 EHRR 14 and Skałka v. Poland, no. 43425/98, § 41, 27 May 2003 [2003] ECHR 256 ). In the present case, the Court considered that the prison sentence and the award of damages could not be regarded as disproportionate. In reaching that conclusion, the Court had regard to the fact that the Swedish courts had found that the applicants had not taken any action to remove the torrent files in question, despite having been urged to do so. Instead they had been indifferent to the fact that copyright-protected works had been the subject of file-sharing activities via The Pirate Bay.

The balancing exercise applied by the ECHR in Neji is not very different from that of the Court of Justice of the European Union in Scarlet [2011] EUECJ C-70/10, [2012] ECDR 4 which I discussed in "Injunctions against ISPs Part II: the CJEU's Judgment in Scarlet" 11 Dec 2011 or indeed Mr. Justice Arnold's in Dramatico and EMI which I blogged in "Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others" 21 Feb 2012 and "Injunctions against ISPs Part V: EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others" 5 March 2012.

This is an important decision but it is not one that the entertainments industry is likely to welcome with unqualified rapture.   For a start, the Court did find that file sharers were entitled to freedom of expression under art 10 which for the moment is incorporated into English law by the Human Rights Act 1998,. That freedom can be curtailed under art 10 (2) only in so far as may be necessary in a democratic society for the protection of the rights of others.  Secondly, the Court restated that the test of “necessity in a democratic society” required any interference with freedom of expression to be justified by a “pressing social need” and that the test can never be applied in absolute terms:   

If anyone wants to discuss this post or indeed  freedom of expression or copyright generally he or she should call me on on +44 (0)20 7404 5252 or send me a message through my contact form. . I can also be followed on Facebook, Linkedin, twitter and Xing.

12 March 2013

The Samsung and Apple Litigation - Round 2 to Apple

According to WikipediaSamsung Electronics Co., Ltd, is the world's largest information technology company in terms of revenue. Apple Inc. is number two. Samsung supplies the famous Galaxy smart phone and Apple the well known iPhone

Over the last few years Samsung and Apple have fought each other in the world's court rooms.(see "Apple Inc. v. Samsung Electronics Co., Ltd" in Wikipedia).  In the last round over Apple's registered Community design, Apple came off second best (see Jane Lambert "Apple v Samsung - the Appeal" 26 Oct 2012) and was made to eat humble pie (see Jane Lambert "Samsung v Apple: 'Be you never so high ....'." 2 Nov 2012 and "Samsung v Apple: the Reasons" 30 Dec 2012).  In Samsung Electronics Co. Ltd v Apple Retail UK Ltd and Another (No. 1) [2013] EWHC 467 (Pat) and Samsung Electronics Co Ltd v Apple Retail UK Ltd and Another (No. 2) [2013] EWHC 468 (Pat) Apple did rather better. Mr. Justice Floyd held three of Samsung's patents to be invalid though he found that two of those patents would have been infringed had they been valid.

Although both cases were part of the same claim they were tried on different days and argued by different counsel.    In the first case Samsung sued Apple for infringement of European patents (UK) numbers 1,005,726 and  1,357,675 and Apple counter-claimed for revocation.   Those patents were for inventions relating to "channel coding", a method of detecting errors in digital transmissions.  In the second, Samsung sued Apple for infringement of European patent (UK) number 1,714,404 which related to the structuring of data streams and again Apple counter-claimed for revocation.   Mr. Justice Floyd delivered judgment in both cases on 7 March 2013.

All three patents claimed priority from South Korean grants:
  • European patent (UK) 1,005,726 from Korean patent no 11380/98;
  • European patent (UK) 1,357,675 from Korean patent no  9926221; and
  • European patent (UK)  1,714,404 from Korean patent no 2004045127.
In the first case Mr. Justice Floyd considered the law on entitlement to priority.   Reminding himself that Lord Justice Kitchin had held in Medimmune Ltd v Novartis Pharmaceuticals UK Ltd and Others [2012] EWCA Civ 1234 (10 Oct 2012) at paragraph [151] that
"151. Section 5(2)(a) of the Patents Act 1977 provides that an invention is entitled to priority if it is supported by matter disclosed in the priority document. By section 130(7) of the Act, section 5 is to be interpreted as having the same effect as the corresponding provisions of Article 87(1) of the European Patent Convention. Article 87(1) says that priority may be derived from an earlier application in respect of the 'same invention'.
152. The requirement that the earlier application must be in respect of the same invention was explained by the Enlarged Board of Appeal of the EPO in G02/98 Same Invention, [2001] OJ EPO 413; [2002] EPOR 167:
"The requirement for claiming priority of 'the same invention', referred to in Article 87(1) EPC, means that priority of a previous application in respect of a claim in a European patent application in accordance with Article 88 EPC is to be acknowledged only if the skilled person can derive the subject-matter of the claim directly and unambiguously, using common general knowledge, from the previous application as a whole."
153. The approach to be adopted was elaborated by this court in Unilin Beheer v Berry Floor [2004] EWCA (Civ) 1021; [2005] FSR 6 at [48]:
"48. …….The approach is not formulaic: priority is a question about technical disclosure, explicit or implicit. Is there enough in the priority document to give the skilled man essentially the same information as forms the subject of the claim and enables him to work the invention in accordance with that claim."
154. In Abbott Laboratories Ltd v Evysio Medical Devices plc [2008] EWHC 800 (Pat), I added this:
"228. So the important thing is not the consistory clause or the claims of the priority document but whether the disclosure as a whole is enabling and effectively gives the skilled person what is in the claim whose priority is in question. I would add that it must "give" it directly and unambiguously. It is not sufficient that it may be an obvious development of what is disclosed.""
The judge also considered paragraph [61] of Lord Justice Jacob's judgment in Unlin where he discussed the extent to which priority could be lost if the invention described in the priority document included features A, B and C, but was claimed in the patent with only two of those features.   That had also been discussed as part of the reasoning in G02/98 Same Invention [2001] OJ EPO 413; [2002] EPOR 167 which was also cited in Medimmune.  Lord Justice Jacob said:
"Mr Carr also relied on those passages of G02/98 quoted above. He submitted that here, just as in the Board's discussion, there were three features, A+B+C (free of play, lip length limitation, and minimum thickness). They are disclosed in combination – hence, he says, a claim to one without the other two cannot have priority. I would reject that submission too. The discussion at this point in the Board's reasoning is in danger of being considered in too abstract a way. Helpful though it was in the Board's reaching its ultimate conclusion, what really matters is the conclusion itself. The fact of the matter is that when features A+B+C are disclosed, a lot must turn on what they actually are. Some inventions consist of a combination of features – the invention consists in the very idea of putting them together. In other cases that is simply not so – the features are independent one from the other. Whether, given a disclosure of A+B+C, there is also a disclosure of A or B or C independently depends on substance, not a formula. The ultimate question is simply whether the skilled man can derive the subject-matter of the claim from the priority document as a whole."
The judge concluded that "the task for the court is therefore:
"(a) to read and understand, through the eyes of the skilled person, the disclosure of the priority document as a whole;
(b) to determine the subject matter of the relevant claim;
(c) to decide whether, as a matter of substance not of form, the subject matter of the claim can be derived directly and unambiguously from the disclosure of the priority document."
His lordship added at paragraph [107]:
"It follows from the authorities cited above that the subject matter of a claim is not the same thing as the scope of the monopoly it claims. Thus, the test for determining priority is not the same as that for novelty. In determining novelty one simply asks whether that which is described in an earlier document would, directly and unambiguously, fall within the monopoly granted by the patent claims. To put it another way, the issue is whether the earlier disclosure would infringe: see Smithkline Beecham PLC's Patent [2005] UKHL 59; [2006] RPC 10. That the law is different for priority can be illustrated by the example in Unilin I have quoted above. The Court of Appeal there recognised that the disclosure of A+B+C may in some circumstances not provide priority for a claim to or A or B alone or to A+B. By contrast, the disclosure of A+B+C will normally deprive a claim to A, B or A+B of novelty. The additional presence of other features in the disclosure would not matter. Applying the infringement test, A+B+C will still infringe, whether the claim is to A, B or A+B. When testing for priority one must therefore guard against simply asking whether the features called for by the claim are present in the priority document. The test for claiming priority in respect of the same invention has more substance, and is less formal, than that."
The judge compared the subject matter of the principal claim of each of the patents and considered whether they were derived directly and unambiguously from the disclosure of the South Korean grant.   In respect of European patent (UK) no 1,005,726 he concluded at paragraph [131] that the subject of matter of the claim was not directly and unambiguously derivable from the priority document.
"The priority document only discloses the use of data rate/frame length and information derived from the service type in the determination of the number of frames. The priority document does not disclose the use of parameters independent of the datastream being transmitted, such as information derived from channel conditions or aspects of the receiver, base station and user class. Yet these are clearly and as a matter of substance part of the subject matter of claim 1."
The judge made a similar comparison between European patent (UK) 1,357,675 and the Korean patent from which it claimed priority and arrived at a similar conclusion.  Samsung had admitted that, if the claims of that patent were not entitled to priority, then the patent would be invalid in the light of an intervening prior publication. As his lordship had held that those claims were not entitled to priority, then it followed that that was invalid.   There was also intervening prior art in respect of European patent (UK)  1,714,404.  In addition, Samsung had sought to amend the patent.   After comparing the patent with the Korean grant Mr Justice Floyd concluded at paragraph [103] of his judgment in the second case that the proposed amended claim was not entitled to priority.

Apple had also argued that each of Samsung's patents was obvious in the light of the prior art.   The judge reminded himself of Mr Justice Kitchin's words in  Generics (UK) Ltd and Others v H Lundbeck A/S [2007] RPC 729, [2007] RPC 32, [2007] EWHC 1040 (Pat) which Lord Hoffmann had approved in Conor Medsystems Inc v Angiotech Pharmaceuticals Inc and Others  [2008] RPC 28, [2008] UKHL 49:
"The question of obviousness must be considered on the facts of each case. The court must consider the weight to be attached to any particular factor in the light of all the relevant circumstances. These may include such matters as the motive to find a solution to the problem the patent addresses, the number and extent of the possible avenues of research, the effort involved in pursuing them and the expectation of success."
He considered the approach of the Court of Appeal in Pozzoli SpA v BDMO SA and Another [2007] BusLR D117, [2007] EWCA Civ 588, [2007] FSR 37
"(l)    (a)   Identify the notional "person skilled in the art""
         (b)   Identify the relevant common general knowledge of that person;
(2)     Identify the inventive concept of the claim in question or if that cannot readily be done, construe it;
(3)     Identify what, if any, differences exist between the matter cited as forming part of the "state of the art" and the inventive concept of the claim or the claim as construed;
(4)      Viewed without any knowledge of the alleged invention as claimed, do those differences constitute steps which would have been obvious to the person skilled in the art or do they require any degree of invention?"
Applying that analysis to the prior art in relation to each patent he concluded that each patent was invalid for obviousness.

There was no dispute as to the test of infringement and hence no discussion of the law.   

This case will be referred to in future for its discussion on priority.   If there is a difference in drafting style between South Korea and the West the point may arise again now that South Korea has taken its place among the world's top five patent offices.  On the other hand it may be a one off.   Only time will tell.

Should anyone want to discuss this case, entitlement to priority, obviousness or patent law in general I and my four colleagues who form the intellectual property group of 4-5 Gray's Inn Square will be glad to talk to you.   You can make an appointment by calling 020 7404 5252 or you can contact me through my contact form. You can also follow me on on Facebook, Linkedin, twitter and Xing.

05 March 2013

Injunctions against ISPs Part V: EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others





It is perhaps eccentric if not downright ungrateful to promote a different business model for the music and motion picture industries having rebuilt my practice on advising and representing defendants to copyright infringement claims by trade associations in those industries but a flower is a great deal cheaper than an intellectual property lawyer and not necessarily less effective.  Before considering Mr.Justice Arnold's judgment in EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others  [2013] EWHC 379 (Ch), [2013] WLR(D) 86 it is perhaps worth watching Amanda Palmer's video on The Art of Asking and pondering her message which I have reproduced from the TED website:
"Don't make people pay for music, says Amanda Palmer: Let them. In a passionate talk that begins in her days as a street performer (drop a dollar in the hat for the Eight-Foot Bride!), she examines the new relationship between artist and fan.
Alt-rock icon Amanda Fucking Palmer believes we shouldn't fight the fact that digital content is freely shareable -- and suggests that artists can and should be directly supported by fans."
Anyway back to the judgment.

This was an application by members of BPI, the British music industry trade association, for injunctions under s.97A of the Copyright, Designs and Patents Act 1988 against the 6 main internet service providers of the United Kingdom to block access to 3 file sharing websites, namely KAT, H33T and Fenopy.   Although the BPI members were formally the only applicants, the application was supported by a number of other organizations representing other groups of rights holders including the Motion Picture Association of America which returned the favour that the BPI had done for the MPAA in Twentieth Century Fox Film Corp and others v British Telecommunications Plc  [2011] RPC 28, [2011] EWHC 1981 (Ch), [2012] 1 All ER 806, [2012] Bus LR 1471 of filing a witness statement in support of the application.

Unlike Twentieth Century Fox's application against BT and Dramatico Entertainment's against BSkyB which I blogged in "Copyright: Twentieth Century Fox Film Corp. v British Telecommunications Plc" (3 Aug 2011), "Injunctions against ISPs" and "Injunctions against ISPs Part III: Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd. and Others" 21 Feb 2012 respectively, the BPI issued a Part 8 claim form instead of the usual Part 7 form and applied for directions.   Readers who do not already understand the significance of the choice of a Part 8 Claim form are referred to CPR Part 7 How to Start Proceedings - The Claim Form and CPR Part 8 Alternative Procedure for Claims.   The judge explained at paragraph [9] that:
"The Claimants adopted that approach for two reasons. First, in the hope that it would be possible in the intervening period for the Claimants to agree the terms of the orders sought with the Defendants. That hope has been realised: each of the Defendants has agreed the terms of the orders sought and none of the Defendants opposes the grant of such orders provided that the Court is satisfied that (i) it has jurisdiction to make such orders and (ii) it is appropriate to do so. Secondly, in order to seek directions from the Court as to whether or not the Claimants should be required to try to serve the applications on the operators of the Websites."
This was a sensible procedure which should have saved a lot of money as his lordship considered the applications on paper - though nothing like as much money as might have been saved by relying simply on a flower.

Mr Justice Arnold granted the injunction.   The claimants were as described in Dramatico [para 12]. Bit torrent technology was also as described in that case [paragraph [13]].  The judge summarized his judgment under s.97A as follows at paragraph [21]:
"Section 97A of the 1988 Act empowers the High Court "to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright". In order for this Court to have jurisdiction to make the orders sought by the Claimants, four matters must be established. First, that the Defendants are service providers. Secondly, that users and/or the operators of the Websites infringe copyright. Thirdly, that users and/or the operators of the Websites use the Defendants' services to do that. Fourthly, that the Defendants have actual knowledge of this."
He considered each of those questions in turn.

1. Are the defendants service providers?  As he stated  at paragraph [5] of  Dramatico Entertainment Ltd and Others v British Sky Broadcasting Ltd and Others,  [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 the learned judge had no doubt that the defendant internet service providers were service providers within the meaning of regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013, and hence within the meaning of section 97A of the 1988 Act and none of the Defendants suggested otherwise.

2. Do users and operators of the websites infringe copyright?   As  in Dramatico Mr. Justice Arnold held that both the users of the file sharing websites and the websites themselves infringed the BPI members' copyrights: the users by reproducing and communicating copyright works to the public without the copyright owners' consent and the website operators by communicating those works to the public, authorizing reproduction and joint tortfeasance.   In this regard Mr Justice Arnold's analysis of the law relating to authorization between paragraph [52] and [70] is particularly useful because it helps distinguish cases like  Twentieth Century Fox Film Corp and Others v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] ECC 13, [2010] FSR 21, [2011] Bus LR D49, [2010] EMLR 17, [2010] ECDR 8 where Mr Justice Kitchin held that there had been authorization from those like C.B.S. Songs Ltd and ors v Amstrad Consumer Electronics Plc [1988] 1 A.C. 1013. Relevant factors, according to the judge, included the relationship between the parties, the means used to infringe, inevitability of infringement, degree of control and steps taken to prevent infringement.  Further, the factors considered in relation to authorization led to the conclusion that 
"the operators of the websites induce, incite or persuade their users to commit infringements of copyright, and that they and the users act pursuant to a common design to infringe. It is also relevant in this regard that the operators profit from their activities. Thus they are jointly liable for the infringements committed by users."
3  Do the users and/or operators of the websites use the defendant ISPs' services to infringe?  Following his earlier decisions in BT and Dramatico the judge held that they did though he did consider a reference by the Austrian Supreme Court to the Court of Justice of the following questions in C314/12 UPC Telekabel Wien GmbH v Constantin Film Verleih GmbH. :
1. Is Article 8(3) of the Directive to be interpreted as meaning that a person who makes protected subject matter available on the internet without the right holder’s consent is using the services of the access providers of persons seeking access to that protected subject matter?
2. If the answer to the first question is in the negative, are reproduction for private use and transient and incident reproduction permissible only if the original reproduction was lawfully reproduced, distributed or made available to the public?
3. If the answer to the first and second question is in the affirmative, and an injunction is therefore to be issued against the user’s access provider in accordance with Article 8(3) of the Directive, is this compatible with Union law, in particular with the necessary balance between the parties’ fundamental rights?
4. If the answer to the third question is in the negative, is it compatible with Union law to require an access provider to take specific measures to make it more difficult for its customers to access a website containing material made available unlawfully if those measures require not inconsiderable costs and can easily be circumvented without any special technical knowledge?
4. Do the defendant ISPs have actual knowledge?  There was ample evidence before the court that the claimants had notified the ISPs of their subscribers' and the website operators' activities so the answer to that question was "yes",

All injunctions are discretionary and the judge held at paragraph [90] that the onus is on the applicants to satisfy the court that a blocking order is appropriate and proportionate.   The approach that the judge had applied in Golden Eye (International) Ltd & Anor v Telefonica UK Ltd  [2012] RPC 28, [2012] EWHC 723 (Ch) which the Supreme Court had approved in  Rugby Football Union v Viagogo Ltd  [2012] 1 WLR 3333, [2012] UKSC 55, [2012] WLR(D) 342 had been as follows:
"… First, the Claimants' copyrights are property rights protected by Article 1 of the First Protocol to the ECHR and intellectual property rights within Article 17(2) of the Charter. Secondly, the right to privacy under Article 8(1) ECHR/Article 7 of the Charter and the right to the protection of personal data under Article 8 of the Charter are engaged by the present claim. Thirdly, the Claimants' copyrights are 'rights of others' within Article 8(2) ECHR/Article 52(1) of the Charter. Fourthly, the approach laid down by Lord Steyn where both Article 8 and Article 10 ECHR rights are involved in Re S [2004] UKHL 47, [2005] 1 AC 593 at [17] is also applicable where a balance falls to be struck between Article 1 of the First Protocol/Article 17(2) of the Charter on the one hand and Article 8 ECHR/Article 7 of the Charter and Article 8 of the Charter on the other hand. That approach is as follows: (i) neither Article as such has precedence over the other; (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test – or 'ultimate balancing test' - must be applied to each."
(See also my post "Norwich Pharmacal Orders: Golden Eye and Others v O2 28" Apr 2012.

The judge concluded at paragraph [107] :
"The orders are necessary and appropriate to protect the intellectual property rights of the Claimants (and other copyright owners). Those interests clearly outweigh the Charter Article 11 rights of the users of the Websites, who can obtain the copyright works from many lawful sources. They even more clearly outweigh the Article 11 rights of the operators of the Websites, who are profiting from infringement on an industrial scale. They also outweigh the Defendants' Article 11 rights to the extent that they are engaged. The orders are narrow and targeted ones, and they contain safeguards in the event of any change of circumstances. The cost of implementation to the Defendants will be modest and proportionate."
The trouble with s.97A injunctions is that the persons who suffer from those orders - namely the ISPs' subscribers and the website operators - are rarely in a position to make representations to the court in respect of whether such orders should be made in the first place or as to the scope of those orders. There are obvious reasons for that. They risk being sued for copyright infringement since they would have to admit to file sharing, operators of file sharing websites may be outside the jurisdiction and many consumers  might never hear of the proceedings. Yet to cut off access to a website in a free country like ours is a very strong thing, particularly if it is done without reference to the persons affected.   One of the principles of natural justice is audi alteram partem - hear the other side.   It has to be suspended in some circumstances as in a "without notice" application for a search order or freezing injunction.   But even in those cases the suspension is temporary.   The problem of s.97A order is that the departure from this important principle of natural law is permanent.

Mr.; Justice Arnold recognized the difficulty himself in Golden Eye when he invited submissions from Consumer Focus but that cannot be done in every case.  Now the music industry has property rights like everyone else but should they be protected in this way?   In “Digital Opportunity A Review of Intellectual Property and Growth” Prof. Hargreaves suggested alternative business models for the music industry.   One such alternative is Amanda Palmer's above.

Should anyone wish to discuss this post, s.97A orders or copyright law in general he or she can call me on on +44 (0)20 7404 5252 or send me a message through my contact form.   I am no longer alone but have 4 excellent colleagues who can discuss this topic one of whom Tom Dillon is much more experienced in this area of law than I am (see my article "Moving to London" 5 March 2013). I can also be followed on Facebook, Linkedin, twitter and Xing.