Paramount Home Entertainment International Ltd and Others v British Sky Broadcasting Ltd and Others

Introduction

This is another application for website-blocking orders under 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"). The Claimants, who each sue in a representative capacity on behalf of companies in the same group, are major film studios. The First to Fifth Claimants are members of the Federation Against Copyright Theft Ltd, as is a member of the Sixth Claimant's group. The Defendants are the six main retail internet service providers ("ISPs") in the United Kingdom. The targets of the present application are two websites located at www.solarmovie.so ("SolarMovie") and www.tubeplus.me ("TubePlus") (collectively, "the Websites").

The principles to be applied to applications of this kind are now settled at this level, having been established in a series of earlier judgments of mine: Twentieth Century Fox Film Corp v British Telecommunications plc[2011] EWHC 1981 (Ch), [2012] Bus LR 1471 (" 20C Fox v BT"); 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)"); Dramatico Entertainment Ltd v British Sky Broadcasting Ltd[2012] EWHC 268 (Ch), [2012] 3 CMLR 14 (" Dramatico v Sky"); Dramatico Entertainment 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[2013] EWHC 2058 (Ch), [2013] ECDR 14 (" FAPL v Sky").

As with most of the previous applications, the Defendants do not resist the application, and have agreed the terms of the orders that should be made if the Court is satisfied that it is appropriate to make orders in respect of the Websites.

The Claimants' rights

The Claimants, and those they represent, own the copyrights in a very large number of commercially available films and television programmes.

The Websites

Each of the Websites provides access to streams of a large range of films and television programmes. In the case of SolarMovie, it appears to be the operators' policy not to provide access to downloads. In the case of TubePlus, it also provides access to downloads. The Claimants' evidence is that over 99% of the content accessible via each Website is likely to be protected by copyright. The mode of operation of the Websites is broadly similar to that of the FirstRow website described in FAPL v Sky at [14]–[19]. Importantly, as in the case of FirstRow, the Websites do not host the content in question. Rather, the Websites ensure that the content is comprehensively categorised, referenced, moderated and searchable. In the case of SolarMovie, links to content are supplied by registered users of the Websites subject to approval by moderators. A key purpose of moderation is quality control (i.e. control over the quality of the link and the material to which it provides access). In the case of TubePlus, it is not clear to what extent links are provided by users and to what extent by the operators of the Website.

Users who wish to access content via one of the Websites are provided with a number of these links in response to searches or when browsing. Typically, clicking on a link enables the user to view a stream of the chosen content on an embedded player (as noted above, some of the TubePlus links provide access to downloads). The content is hosted by one of a number of third party websites. Some of the host sites require the user to become a member before streaming the chosen content, while others do not. At least in the latter case, the host sites tend not to be searchable.

The ultimate source of the content varies. In the case of television programmes, it is typically a copy captured from a broadcast (with HD broadcasts being favoured for obvious reasons) or (in the case of older programmes) a DVD. In the case of films, it is likely to be a Blu-Ray disc or DVD, but in other cases it may be a television broadcast or a copy of a film made in a cinema using a camcorder or mobile phone. Users who provide links to SolarMovie must specify the "quality" (i.e. source) of the link.

Jurisdictional requirements

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 the Claimants' copyrights. 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.

Are the Defendants service providers?

As I stated in Dramatico v Sky (No 2) at [5], I am in no doubt that the Defendants are 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. None of the Defendants has suggested otherwise.

Do the operators and/or users of the Websites infringe the Claimants' copyrights?

The Claimants contend that the operators of the Websites infringe their copyrights in two ways. First, by communicating the copyright works to the public within section 20 of the 1988 Act, alternatively by acting as joint tortfeasors with the operators of the host websites. Secondly, by authorising infringements by users. The Claimants contend that some UK users of the Websites, namely users who submit links to infringing content to the Websites, infringe their copyrights by communicating the copyright works to the public.

Communication to the public

As I have explained in previous judgments, section 20 of the 1988 Act confers rights of communication to the public on copyright owners which give effect to (and indeed, extend beyond) Article 3(1) of the Information Society Directive. The Court of Justice of the European Union has now considered the concept of "communication to the public" within Article 3(1) in a series of nine judgments: Case C-306/05Sociedad General de Autores y Editores de España (SGAE) v Rafael Hoteles SA [2006] ECR I-11519; Case C-136/09Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon v Divani Akropolis Anonimi Xenodocheiaki kai Touristiki Etaireia [2010] ECR I-37; Case C-393/09Bezpecnostní softwarová asociace – Svaz softwarové ochrany v Ministerstvo kultury [2010] ECR I-13971; Joined Cases C-403/08 and C-429/08Football Association Premier League Ltd v QC Leisure [2011] ECR I-9083; Joined Cases C-431/09 and C-432/09Airfield NV v Belgische Vereniging van Auteurs, Compositien en Uitgevers CVBA (SABAM) [2011] ECR I-9363; Case C-283/10Circul Globus Bucuresti (Circ & Variete Globus Bucuresti) v Uniunea Compozitorilor si Muzicologilor din România – Asociatia pentru Drepturi de Autor (UCMR – ADA) [2011] ECR I-12031; Case C-135/10Societá Consortile Fonografici (SCF) v Del Corso [2012] Bus LR 1870; Case C-162/10Phonographic Performance (Ireland) Ltd v Ireland [2012] ECDR 15; and Case C-607/11ITV Broadcasting Ltd v TVCatchup Ltd [2013] ECDR 9. I have considered most of these judgments in previous judgments on section 97A applications.

The principles established by the CJEU case law can, I think, be summarised as follows:

(1) "Communication to the public" must be interpreted broadly: SGAE at [36], [54], FAPL at [186], ITV at [20].

(2) "Communication to the public" covers any transmission or retransmission of the work to the public not present at the place where the communication originates by wire or wireless means: ITV at [23].

(3) "Communication to the public" does not include any communication of a work which is carried out directly in a place open to the public by means of public performance or direct presentation of the work: Circul at [36]–[41], FAPL at [200]–[203].

(4) There is no "communication to the public" where the viewers have no access to an essential element which characterises the work: Bezpecností at [57].

(5) "Communication" includes any retransmission of the work by a specific technical means different from that of the original communication: ITV at [24]–[26].

(6) A mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a "communication": SGAE at [42], FAPL at [194], Airfield at [74], ITV at [28].

(7) There is an act of "communication" when someone gives members of the public access to the work in circumstances where they would not be able to enjoy the...