Columbia Pictures Industries Inc. v British Telecommunications Plc
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Falk |
| Judgment Date | 22 October 2021 |
| Neutral Citation | [2021] EWHC 2799 (Ch) |
| Docket Number | Case No: IL-2021-000045 |
| Court | Chancery Division |
[2021] EWHC 2799 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mrs Justice Falk
Case No: IL-2021-000045
Richard Spearman QC (instructed by Wiggin LLP) for the Applicants
Hearing date: 18 October 2021
APPROVED JUDGMENT
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
These are my written reasons for the grant of a website blocking order under section 97A Copyright, Designs and Patents Act 1988 (“CPDA”). I considered detailed written submissions and evidence. I was invited to make the order on the papers but decided to request oral submissions on certain aspects. Mr Spearman QC provided those submissions on 18 October 2021, following which I made the order. I am grateful for Mr Spearman's assistance.
The applicants (the “Studios”) are members of well-known studio groups, acting on their own behalf and behalf of other members of their respective groups. The Studios and those they represent own the copyright in a large number of motion pictures and television programmes.
The respondents (the “ISPs”) are the six major UK internet service providers, with a combined market share of over 90% of the UK fixed line broadband market. All the ISPs have been subject to blocking orders made in other proceedings brought under section 97A CPDA, and all have confirmed that they do not oppose this application. The terms of the draft order were discussed with them.
The Target Websites
The application relates to five websites currently located at 123movies.online/123moviesfun.ch, europixhd.net, levidia.ch, tinyzonetv.to and watchserieshd.tv (the “Target Websites”). The Studios' position is that the purpose of these websites is to make available for streaming vast amounts of copyright protected film and television content, including content owned by the Studios and their affiliates, without any licence being in place.
The Target Websites do not themselves host the relevant content. In all cases audio visual content is transmitted from a third-party site that hosts the content, rather than directly from the Target Websites. The way that the Target Websites work is to provide links to content on those other sites, but indexed and categorised in a way that enables users to search for, select and access content straightforwardly. For example, as well as providing a search facility additional information is provided about the listed content, such as the genre, synopsis, running time, release date, language and a rating. In essence, the sites enable users to access material in a user-friendly manner. Active steps are taken to maintain the relevant site and editorial control is clearly exercised. Steps are taken to encourage users to access content, for example advertising recently added content and facilitating the sharing of links on social media. Profits are generated from advertising.
Four out of five of the Target Websites use embedded players to stream content selected by a user from the host website. In those cases there is nothing that clearly indicates that the user has been redirected to a third-party site. One site, levidia.ch, uses a “pop-up” window instead. With that site the user can choose between different host sources by making a selection from links provided on the relevant contents page. When this is done the URL of the relevant host is displayed in the browser bar.
The witness statement in support of the application confirmed that all of the Target Websites are substantially the same, in terms of their purpose and general mode of operation, as websites that are subject to existing orders under section 97A. Further, a number of the websites have adopted the brand names of sites that are already the subject of a blocking order.
The activities of the Target Websites have not been curtailed despite attempts to contact their operators. There is no indication that any of them has a legitimate purpose. Rather, they are focused on the provision, without charge, of content that has been made available, or is scheduled to be made available, for commercial purchase.
The Target Websites are all operated outside the jurisdiction. The majority are hosted via CloudFlare's delivery platform. Where that is the case it is not possible to determine definitively whether or not other sites are also hosted on the same server. The applicants have confirmed that, following the grant of the order, they will notify the Target Websites to CloudFlare and request that they be allocated to dedicated IP addresses. This approach has been taken in respect of sites blocked pursuant to existing orders under section 97A, and is intended to ensure that only material on the Target Websites is blocked.
Copyright infringement: communication
The Studios' primary contention is that the operators of the Target Websites infringe copyright by communicating to the public copyright works owned and controlled by the Studios or their affiliates, contrary to section 20 CPDA. They contend that the necessary territorial link is established by the targeting of users in the UK.
The relevant principles were recently considered by the Court of Appeal in TuneIn Inc v Warner Music UK Ltd [2021] EWCA Civ 441 (“ TuneIn”).
It is clear that the Target Websites enable works to be made available in such a way that members of the public can access them from a place and at a time of their choosing. The operators of the Target Websites are clearly aware that, by including links to content, they are providing access to the works. That is the purpose of the sites. The sites provide access to content in a straightforward way, enable users to enjoy the works where they would otherwise not be able to do so, or would find it difficult to do so. That amounts to “communication”: see TuneIn at [70(8)]. In particular, the fact that the infringing content may be hosted at a third party location does not prevent the activities of the Target Websites from amounting to communication, because of the active intervention to make the content available to users in a readily accessible manner. See for example EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch) (“ EMI”) at [45], referring to Twentieth Century Fox Film Corpn v Newzbin Ltd [2010] EWHC 608 (Ch) (“ Newzbin”), and Paramount Home Entertainment International Limited & Ors v British Sky Broadcasting Limited & Ors [2013] EWHC 3479 (Ch) (“ Paramount”) at [32]. It is not necessary to show that the work in question is actually accessed: TuneIn at [70(9)].
Although levidia.ch uses a slightly different mechanism to access content, with the result that a user may be more likely to recognise that content is being accessed via a third party site, this does not alter the key point that the Target Website provides access to content in a straightforward manner, without the difficulties that would otherwise be involved in locating the material.
I am further satisfied that content is communicated to “the public”. The Target Websites are generally available to, and indeed have been accessed by, a large and indeterminate number of persons. Insofar as it may be necessary to show that the communication was to a “new public” because the same technical...
To continue reading
Request your trial
-
Bermuda Press (Holdings) Ltd v Evatt Tamine
...one jurisdiction to information available elsewhere in order to protect intellectual property rights: see e.g. Columbia Pictures Industries Inc v British Telecommunications plc [2021] EWHC 2799 (Ch) and [2022] EWHC 2403 (a) to protect the rights of individuals including parties and witness......
-
Columbia Pictures Industries, Inc. v British Telecommunications Plc
...the further cases cited by Falk J at [12] of her recent judgment in another application brought by these same Applicants, reported at [2021] EWHC 2799 (Ch). There is little doubt that such communication is to the public: the Target Websites are generally available, and have been accessed b......
-
Nintendo Company Ltd v British Telecommunications Plc
...section 97A CDPA are now well established. As Falk J observed in Columbia Pictures Industries Ltd v British Telecommunications plc [2021] EWHC 2799 (Ch) (“ Columbia”) at [23]: “In summary, the jurisdiction to grant an order under section 97A is dependent on the court being satisfied that (......