EMI Records Ltd and Others v British Sky Broadcasting Ltd and Others
| Jurisdiction | England & Wales |
| Judge | The Hon Mr Justice Arnold,Mr Justice Arnold |
| Judgment Date | 28 February 2013 |
| Neutral Citation | [2013] EWHC 379 (Ch) |
| Docket Number | Case Nos: HC12F4957, HC12F4958, HC12F4959 |
| Court | Chancery Division |
| Date | 28 February 2013 |
[2013] EWHC 379 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane, London, EC4A 1NL
The Hon Mr Justice Arnold
Case Nos: HC12F4957, HC12F4958, HC12F4959
Ian Mill QC, Edmund Cullen QC, Tom Richards and Shane Sibbel (instructed by Forbes Anderson Free) for the Claimants
The Defendants did not appear and were not represented
Approved Judgment
Contents
| Topic | Paragraphs |
| Introduction | 1–11 |
| The Claimants' rights | 12 |
| Bittorrent | 13 |
| The Websites
| 14–19 |
| The legal framework | 20 |
| Jurisdictional requirements | 21 |
| Are the Defendants service providers? | 22 |
| Do the users of the Websites infringe? Copying 24–27 Communication to the public 28–41 Conclusion 42 23–42 | |
| Do the operators of the Websites infringe?
| 43–75 |
| Do the users and/or operators use the Defendants' services to infringe? | 76–88 |
| Do the Defendants have actual knowledge? | 89 |
| Proportionality and discretion | 90–107 |
| Conclusion | 108 |
Introduction
The Claimants are record companies claiming on their own behalf and in a representative capacity on behalf of the other members of BPI (British Recorded Music Industry) Ltd ("BPI") and Phonographic Performance Ltd ("PPL"). The Defendants are the six main retail internet service providers ("ISPs") in the United Kingdom. Between them they have a fixed line market share of some 94% of UK internet users. By this claim the Claimants seek an injunction against the Defendants pursuant to section 97A of the Copyright, Designs and Patents Act 1988 ("the 1988 Act"), which implements Article 8(3) of European Parliament and Council Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society ("the Information Society Directive"), requiring the Defendants to take measures to block or at least impede access by their customers to three peer-to-peer ("P2P") file-sharing websites called KAT (claim HC12F4957), H33T (claim HC12F4958) and Fenopy (claim HC12F4959) (collectively "the Websites").
Although the Claimants are formally the only applicants, the application is supported by the following organisations representing other groups of rightsholders, a representative of each of which has made a witness statement in support of the application:
i) The MCPS-PRS Alliance Ltd trading as PRS for Music which is the operating company for two collecting societies representing composers, writers and publishers of musical works and associated lyrics, namely Mechanical-Copyright Protection Society Ltd and Performing Right Society Ltd. MCPS has over 19,000 writer members and over 6,300 publisher members, while PRS has nearly 80,000 writer members and about 4,500 publisher members. In addition to acting for their members, MCPS and PRS act on behalf of similar organisations around the world under bilateral agreements. They are able to license the vast majority of the world's repertoire of musical compositions for the UK.
ii) The Motion Picture Association, which is the international arm of the Motion Picture Association of America, Inc, a trade association that represents the major Hollywood film studios.
iii) Producers Alliance for Cinema and Television, a trade association which represents the commercial interests of independent feature film, television, digital and animated media companies in the UK.
iv) The Association for UK Interactive Entertainment, which represents the interests of almost all major companies involved in the development and publication of video games in the UK.
v) The Publishers' Association Ltd, which represents the interests of UK book publishers.
In Twentieth Century Fox Film Corp v British Telecommunications plc [2011] EWHC 1981 (Ch), [2012] Bus LR 1471 (" 20C Fox v BT") I held that the Court had jurisdiction, and that it was appropriate to exercise my discretion, to make a blocking order against the Second Defendant ("BT") with respect to a website called Newzbin2. In Twentieth Century Fox Film Corp v British Telecommunications plc (No 2) [2011] EWHC 2714 (Ch), [2012] Bus LR 1525 (" 20C Fox v BT (No 2)") I determined the terms of that order. Subsequently Vos J and I made similar orders against the other Defendants.
As I explained in 20C Fox v BT at [2], that application was a sequel to a successful claim for copyright infringement brought by the claimants in that case against Newzbin Ltd, which had operated an almost identical website to Newzbin2 ("Newzbin1"). Newzbin Ltd was found by Kitchin J (as he then was) to have infringed the claimants' copyrights on a large scale: Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] FSR 21 (" 20C Fox v Newzbin"). He granted an injunction against Newzbin Ltd to restrain further infringements of the claimants' copyrights. Subsequently the Newzbin1 website ceased operation. Shortly afterwards, however, the Newzbin2 website commenced operation at the same location. As was explained in more detail in 20C Fox v BT at [48]-[55], Newzbin2 operated in essentially the same manner as Newzbin1. It followed that Kitchin J's findings of infringement of copyright in respect of Newzbin1 were equally applicable to Newzbin2: see 20C Fox v BT at [113].
Subsequently representatives of BPI and PPL applied for a website-blocking order in respect of a website called The Pirate Bay ("TPB"). The claimants had not brought proceedings for copyright infringement against the operators of TPB in this jurisdiction, although both civil and criminal proceedings had been brought in a number of other jurisdictions. Accordingly, the claimants and the Defendants agreed to an order for the trial of preliminary issues as to whether, on the evidence before the Court, (i) users and (ii) the operators of TPB infringed the claimants' copyrights in the UK. The remaining issues raised by the claim were left to be dealt with at a second hearing if the claimants prevailed on either or both of the preliminary issues. Understandably, the Defendants did not choose to appear or be represented at the trial of the preliminary issues; but they made it clear that their position was that it was not for the Defendants to decide whether or not users or the operators of TPB infringed the claimants' rights, but for the Court to do so.
In Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 CMLR 14 (" Dramatico v Sky") I held that both users and the operators of TPB did infringe the copyrights of the claimants (and those they represented) in the UK. Following that judgment, five of the Defendants indicated to the claimants that they did not oppose the making of orders under section 97A of the 1988 Act in terms which had been agreed between the parties. I acceded to the claimants' application that I should make those orders for the reasons I gave in Dramatico Entertainment Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 (" Dramatico v Sky (No 2)").
In that judgment I held that the Court had jurisdiction to make the orders sought and that it was appropriate to exercise my discretion to do so. As I recorded at [9]-[11], the claimants rightly accepted that, even though the five Defendants did not oppose the making of the orders, the onus remained on the claimants to satisfy the Court that it was appropriate to make such orders, and in particular that the orders were proportionate. Where the terms of such orders have been negotiated between the parties, and those parties are professionally represented (or at least have access to professional advice), then it may be assumed that the orders are proportionate as between the parties; but it does not necessarily follow that they are proportionate as between the claimants and users of the Defendants' services. Accordingly, it is the duty of the Court not simply to rubber stamp the terms agreed by the parties, but independently to consider the proportionality of the proposed orders from the perspective of individuals affected by them who are not before the Court.
Subsequently I also made an order against the remaining Defendant in respect of TPB, again in terms agreed between the parties.
With the benefit of the experience gained on the previous applications, the Claimants have adopted a slightly different approach to the present applications. The applications have been made by CPR Part 8 Claim Forms issued on 20 December 2012 and application notices issued on the same date. The application notices were listed for directions only on 19 February 2012. 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...
To continue reading
Request your trial
-
Paramount Home Entertainment International Ltd and Others v British Sky Broadcasting Ltd and Others
...Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 (" Dramatico v Sky (No 2)"); EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 (" EMI v Sky"); and Football Association Premier League Ltd v British Sky Broadcasting Ltd [......
-
Tunein Inc. v Warner Music UK Ltd
...[EU:C:2012:642] (database right). This case law has been applied in this jurisdiction to communication to the public: EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] Bus LR 884 (“ EMI v BSkyB”). The law has twice been reviewed by this Court in the trade mark co......
-
Cartier International AG v British Sky Broadcasting
...Ltd v British Sky Broadcasting Ltd (No 2) [2012] EWHC 1152 (Ch), [2012] 3 CMLR 15 (" Dramatico v Sky (No 2)"); EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 (" EMI v Sky"); Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013......
-
British Broadcasting Corporation v Mechanical-Copyright Protection Society Ltd
...the UK and be received in a foreign territory such that it will infringe copyright in both territories if unlicensed: see EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] ECDR 8 at [33]–[38] regarding the position under EU law. The Satellite and Cable Directive ......
-
High Court Confirms That Operators Of A Live Sports Indexing Website Infringe FAPLs Copyright
...of users of the FirstRow website. Mr Justice Arnold's judgment in EMI Records Ltd & Ors v British Sky Broadcasting Ltd & Ors [2013] EWHC 379 (Ch) was used as the basis for his deliberation regarding whether there had been an unlawful communication to the public. He considered three ......