On October 22, 2021, the High Court of the United Kingdom issued a judgment which clarifies the existing law on the conditions for granting blocking orders against Internet service providers (ISPs) in case of violation of the law copyright by website operators.
Request for restraint order
In that case, Columbia Pictures Industries Inc & Ors v. British Telecommunications Plc & Ors  EWHC 2799 (Ch), six members of leading studio groups (including Disney, Netflix and Warner Bros.) have jointly filed for a website blocking order to be granted against six major UK ISPs.
The request was made on the grounds that the operators of five particular websites are infringing copyright by making available in streaming film and television content belonging to the studios (by providing hyperlinks to content hosted on third-party sites, the Internet user then distributing the content via on-board players or pop-up windows), and that they do so via the services that ISPs knowingly provide them. The five websites were all operated outside the jurisdiction and therefore beyond the reach of UK courts. The ISPs did not seek to oppose the request and the blocking order was granted under Section 97A of the Copyright, Designs and Patents Act 1988, which offers copyright owners an effective remedy through ISPs to prevent online infringements in the event that website operators do not respond to takedown. requests.
Website operators have infringed copyright by making copyright protected works available to the public and by allowing acts of copying by users of UK based websites. The judgment focused on the simple and user-friendly way in which websites provide access to copyrighted works; provide users with hyperlinks to third-party sites, and index and categorize the links in a way that allows content to be searched and additional information about the works (such as synopsis and runtime) to be obtained.
The relevant principles enunciated in the recent “TuneIn” Court of Appeal case (Tunein Inc v Warner Music UK Ltd and Anor  EWCA Civ 441) were applied in this judgment.
Communication to the public
It has been found that copyrighted works have been released to the public by website operators for the following reasons:
- the public could access the works from a place and time of their choice;
- the site operators were well aware that they give access to works and that is the purpose of the sites;
- it was easy for users to locate and enjoy the works – content was delivered in a straightforward manner (although for a website, clicking on the link would open a pop-up window, making it easier for users to recognize what the content was accessible via a third-party site);
- there has been an “active intervention” by the operators of the website to make the content available to users in an easily accessible manner, which makes it irrelevant that the content is actually hosted on third-party sites; and
- it was not necessary to show that the works were actually viewed by users.
The requirement of “public” was satisfied on the basis that the websites were accessible to the public and were in fact visited by a very large number of people. When the works were initially communicated to the public via an online subscription service, the judge went further and found that websites were communicating these works to a “new audience”. That is, an audience that was not intended by the owner of the works when the original communication was authorized. The websites were found to objectively target the audience in the UK through: the default language being English; providing access to content in English; have a high number of user visits to UK; and advertising targeting the UK market.
In addition, it was considered that operators of websites profiting from such activities, which involve the use of hyperlinks, are required to verify that the works are not illegally published. In this case, the operators of the site should know that they did not have the consent of the owners.
Authorize acts of copying
Website operators were found to further infringe copyright by allowing acts of copying by users.
Part of the streaming process involves the user’s device making copies of the content in its memory, which is therefore tantamount to an act of copying by the users. The judge inferred “extensive copying” by referring to the large amount of content available on websites, the fact that the purpose of websites is to make content available, and the high volume of traffic to the sites.
By providing a user-friendly environment for locating and accessing content, and therefore the means for a user to counterfeit, websites have been found to “positively encourage and facilitate” counterfeiting and therefore allow it.