Intellectual Property – Copyright – Peer-to-Peer – File Sharing – British Phonographic Industry – Internet Service Providers – EMI Records Ltd – Injunction

 

A number of well-known record companies were recently successful in obtaining injunctions, which required six internet service providers (“ISPs”) to block customers’ access to three peer-to-peer file-sharing websites, namely KAT, H33T and Fenopy.

 

It has long been an issue that internet users use file-sharing websites to download as well as share music protected by copyright, without permission. The claimants in this case, which included EMI Records Ltd, Polydor Ltd and Sony Music Entertainment UK Ltd, among others, are members of the British Phonographic Industry (“BPI”). The claimants were acting on behalf of themselves as well as other members of the BPI.

 

The Law

An injunction was granted in accordance with Section 97A of the Copyright, Designs and Patents Act 1988 (the “Act”).

 

97AInjunctions against service providers

 

(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.

 

In this case Mr Justice Arnold considered the following four matters, which must be established in order for the injunctions to be granted:

 

1. Whether the defendants were ‘service providers’?
2. Did the users and operators of the websites infringe copyright?
3. Did the users and/or operators of the websites use the ISPs’ services to infringe copyright?
4. Did the ISPs have ‘actual knowledge’ of the copyright infringement?

 

Were the defendants ‘service providers’?

The Judge had no doubt that the defendants were ‘service providers’ within the meaning of regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002.

 

“service provider” means any person providing an information society service;

 

“information society services” (which is summarised in recital 17 of the Directive as covering “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service”) has the meaning set out in Article 2(a) of the Directive, (which refers to Article 1(2) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC of 20 July 1998).

 

 

Did the users and operators of the websites infringe copyright?

The Judge held that the website users as well as its operators infringed the BPI members’ copyright works in the following ways, respectively:

 

• Reproducing (copying) and communicating copyright works to the public without consent;
• Communicating those works to the public and authorising the website users to copy and communicate the copyright works to the public.

 

The Judge stated that “they go far beyond merely enabling or assisting. On any view, they ‘sanction, approve and countenance’ the infringements of copyright committed by their users. But in my view they also purport to grant users the right to do the acts complained of.”

 

Did the users and/or operators of the websites use the ISPs’ services to infringe copyright?

The Judge was satisfied that both the users and operators of the websites used the ISPs’ services to infringe the BPI members’ copyright works.

 

Actual Knowledge

A key requirement of Section 97A of the Act is that the service providers must have actual knowledge of third parties using their services to infringe copyright.

 

The ISPs were served with weekly notifications from BPI, along with supporting evidence that users were using the ISPs’ services to access such peer-to-peer websites and subsequently infringed copyright in music belonging to BPI members.

 

By way of supporting evidence, the claimants used an expert to monitor infringing activities of peer-to-peer users and notified the ISPs of the number of instances of illegal downloading.

 

Furthermore, before commencing proceedings the BPI (on behalf of the record companies) wrote to each of the defendant ISPs highlighting the use of their services to infringe BPI members’ copyright works.

 

Injunction granted

The High Court deemed it proportionate to grant the injunction to block access to the websites.

 

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© RT COOPERS, 2013. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.