Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Henderson |
| Judgment Date | 18 February 2014 |
| Neutral Citation | [2014] EWHC 937 (Ch) |
| Docket Number | Case No. HC13D05470 |
| Court | Chancery Division |
| Date | 18 February 2014 |
[2014] EWHC 937 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Fetter Lane
London
EC4A 1NL
The Honourable Mr. Justice Henderson
Case No. HC13D05470
MR RICHARD SPEARMAN, QC (instructed by Wiggin LLP) appeared on behalf of the Applicants.
The online infringement of copyright in films and television programmes is a major problem for the audio digital industry, both in the United Kingdom and elsewhere in the world. The total loss that falls to the industry as a result of these activities is estimated to amount to several hundred million pounds.
The present application is the latest in what is now a fairly long line of cases seeking website blocking orders under section 97A of the Copyright, Design and Patents Act 1988 (the "Act"). The Claimants (who are the Applicants in this application) are major film studios suing in a representative capacity on behalf of companies in their respective groups. The Defendants (who are the Respondents in this application) are the six main Internet service providers in the UK.
The targets of the application are four websites currently located at viooz.co (the "Viooz website"); megashare.info (the "Megashare website"); www.1.zmovie.tw (the "zMovie website"); and watch32. com (the "Watch32 website"). I will refer to them together as the "Target Websites".
As with most of the recent applications in the line of cases to which I have referred, this application is not opposed by the Defendants. The terms of the orders which the Court is asked to make have been agreed, subject to the Court being satisfied that it is appropriate to grant the relief sought.
Section 97A(1) of the Act provides that the High Court "shall have the 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". Section 97A(2) then states that "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", including certain matters which are then specified.
The background to section 97A is that it was inserted into the Act by the Copyright and Related Rights Regulations 2003 (SI 2003/2498) for the purpose of transposing into domestic law Article 8(3) of the 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"). Recitals 58 and 59 of the Information Society Directive make it clear, among other things, that Member States should provide for effective sanctions and remedies for infringements of the rights set out in the Directive, and that the sanctions for infringement should be effective, proportionate and dissuasive and should include the possibility of seeking damages and/or injunctive relief.
The recitals also make it clear that, in the digital environment, the services of intermediaries may increasingly be used by third parties for infringing activities, and for that reason, such intermediaries are often best placed to bring such infringing activities to an end. It was, therefore, envisaged that rightholders should have the possibility of applying for an injunction against intermediaries where such services are being used by a third party to infringe a copyright or related right.
A particular reason why section 97A needed to be enacted in order to give effect to Article 8(3) is that under English law an injunction cannot normally be granted against a person against whom no substantive cause of action exists. Authority to do so, therefore, was specifically provided in section 97A.
I am told that the section was not in fact used in this country until 2011 when Arnold J dealt with the original application against BT, first in Twentieth Century Fox Film Corpn v BT [2011] RPC 28 where he determined whether an order should be made against BT, and secondly in Twentieth Century Fox Film Corpn v BT [2011] EWHC 2714 (Ch) where he dealt with matters relating to the form of relief to be granted.
That jurisprudence has been developed and applied by Arnold J in a number of later cases, of which the most recent is Paramount Home Entertainment International Ltd & Others v British Sky Broadcasting Ltd & Others [2013] EWHC 3479 (Ch) (" Paramount v BSB"), in which he delivered judgment on 13 November 2013. In paragraph 2 of that judgment he said that "The principles to be applied to applications of this kind are now settled at this level", and then listed each of his earlier judgments in which those principles had been established.
I will take all that jurisprudence as read, subject to the few comments which follow in this judgment.
There are four things which need to be established in order to satisfy the jurisdictional requirements of section 97A: (1) that the Respondents are service providers; (2) that the users and/or the operators of the Target Websites infringe copyright; (3) that the users and/or the operators of the Target Websites use the services of the Respondents to do that; and (4) that the Respondents have actual knowledge of this.
If these jurisdictional requirements are satisfied, the Court must then consider issues of proportionality and discretion before granting the injunction.
Turning now to the facts of the present case, the Target Websites are described in detail in the evidence in support of the application, including in particular the witness statement of Simon James Baggs, a partner of Wiggin LLP, who has conduct of these proceedings on behalf of the Applicants.
I will not rehearse that evidence in detail; I accept it in its entirety. It establishes, (among other matters) that: (1) no licence has been granted by the Applicants or their group companies to the operators of the Target Websites; (2) the essential purpose of the Target Websites is to make available content that is protected by copyright, including copyright content owned by the Applicants or their group companies; (3) that content comprises film and/or television content; (4) the operators of the Target Websites (nearly all of whom are thought to be based offshore) are clearly aware of the infringement of copyright for which they are responsible; and (5) the Target Websites are directed at users in the UK, among other places.
Investigations carried out on behalf of the Applicants (which are described in the evidence) show that over 90 per cent of the content made available by the Viooz website, all of the content made available by the Megashare website, over 87 per cent of the content made available by the zMovie website, and over 95 per cent of the content made available by the Watch32 website, is likely to be protected by copyright.
A further feature of the evidence, as in Paramount v BSB, is that the Target Websites do not themselves host the infringing content. Instead, they categorise, reference, moderate or otherwise provide editorial oversight over the content, and provide search facilities to enable visitors of the Target Websites to quickly find the film or television programme which they wish to see. Typically an embedded player located on the Target Website will enable the content of that film or programme to be streamed to the user, whilst being hosted on a separate site. The user may well be unaware of the fact that at this stage a hyperlink will have operated to direct the user to the separate site operated by one of the offshore operators from whom the infringing material ultimately derives.
I think that is all I need to say about the general background to this case, which is broadly similar to that which the Court has had occasion to consider in a number of previous cases.
Returning to the four questions which I set out earlier, the first question, namely whether the Defendants are service providers, must clearly be answered in the affirmative. There is no doubt about that, and none of the Defendants has ever sought to contend the contrary.
The second, and more difficult question in some cases, is whether the operators of the Target...
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