Copyright - Columbia Pictures and others v BT Plc and others
|Crossroads of the World|
Author Carol M Highsmith Public domain Source Wikimedia Commons
Business and Property Courts, Intellectual Property Lost (Mrs Justice Falk) Columbia Pixtures Inc and others v British Telecommunications Plc and others  EWHC 2799 (ch) (22 Oct 2021)
This was an application by members and representatives of the US film and television programme-makers industry for a blocking order against the leading British internet service providers under s.97A of the Copyright Designs and Patents Act 1988 ("CDPA"). A blocking order is an injunction requiring an internet service provider to take steps to prevent its subscribers from accessing a proscribed website.
(1) The High Court (in Scotland, the Court of Session) shall have 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.
(2) In determining whether a service provider has actual knowledge for the purpose of this section, a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, amongst other things, shall have regard to--
(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6 (1) (c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013); and
(b) the extent to which any notice includes--
(i) the full name and address of the sender of the notice;
(ii) details of the infringement in question.
(3) In this section "service provider" has the meaning given to it by regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002."
An order under s.97A was first sought in Twentieth Century Fox Film Corporation and others v Newzbin Ltd  EWHC 608 (Ch),  ECDR 8,  ECC 13,  FSR 21,  Bus LR D49,  EMLR 17 which I successfully resisted. Such an order was first granted by Mr Justice Arnold (as he then was) in Twentieth Century Fox Film Corporation and others v British Telecommunications Plc  EWHC 2714 (Ch) (26 Oct 2011)  1 All ER 869,  EWHC 2714 (Ch),  Bus LR 1525 following his judgment in Twentieth Century Fox Film Corp and others v British Telecommunications Plc  1 All ER 806,  EWHC 1981 (Ch),  RPC 28,  Bus LR 1471. I discussed those applications in Newzbin and the first British Telecommunications judgment in Copyright: Twentieth Century Fox Film Corp. v British Telecommunications Plc on 3 Aug 2011.
The film and TV programme-makers sought an order blocking access to five websites that were alleged to have made available for streaming vast quantities of copyright-protected film and TV content without their licence. Those sites were not alleged to have hosted any infringing materials. Instead, they provided links to such content on other sites. They indexed those links, provided information about the content such as genres synopses, running times, release dates, language and ratings and regularly updated and promoted their selection of films and programmes. The activities of those sites were funded by advertising,
The application was made to Mrs Justice Falk in writing. The internet service providers did not oppose the application or participate in the proceedings though they did discuss the terms of the proposed order with the film and programme-makers. Her ladyship held a hearing on 18 Oct 2021 at which the applicants were represented. She handed down judgment on 22 Oct 2021 (see Columbia Pictures Industries Inc and others v British Telecommunications Plc and others  EWHC 2799 (Ch) (22 Oct 2021)).
At para  of her judgment, the judge directed herself as follows:
"The injunction must be (i) necessary, (ii) effective, (iii) dissuasive, (iv) not unduly costly or complicated, (v) avoid barriers to legitimate trade, (vi) a fair balance between the fundamental rights engaged, (vii) proportionate and (viii) safeguarded against abuse. Of these factors, proportionality is the key one, since consideration of the other factors feeds into the proportionality analysis."
In Mrs Justice Falk's view, a blocking order did strike a fair balance between protecting the applicants' intellectual property rights and the subscribers' freedom of expression under art 10 of the Convention on Human Rights. The public has no legitimate interest in accessing infringing copies of copyright works and any interference with those rights was justified. She, therefore, made that order.