UK: Online Infringement: Pirates Failing To Find Safe Harbour?

Last Updated: 7 August 2014
Article by John Moffat

1. Summary

1.1 Copyright rights holders, whether corporate rights holders, individuals or collecting societies set up to authorise the use of protected works of their members (together "rights holders"), object when third parties make unauthorised use of their works on the Internet. However, given that the unauthorised uploading may happen in one jurisdiction, from a server of an Internet Service Provider (ISP) in another jurisdiction, and the downloading/streaming of the content occurs in yet another, how can rights holders seek to prevent widespread unauthorised dissemination of their work?

2. Introduction

2.1 In the EU a variety of different Directives covering different aspects of copyright protection come into play. On the one side the E-commerce Directive1, the Information Society Directive2 and the Intellectual Property Enforcement Directive3 seek to provide rights holders with opportunities for redress where unauthorised users have been identified, for example for a notice and takedown procedure4. On the other, the Data Protection Directive5 and Directive on Privacy and Electronic Communications6construed in the light of the European Convention on Human Rights7 act to protect the privacy and freedom of an individual user of the Internet (by virtue of their "fundamental rights").

2.2 Various European Courts, both at a national and European level, have at different times found the balance to lie in different places. Nevertheless, recent decisions, as discussed below, seem to indicate a trend whereby a more settled approach is being adopted.

3. Newzbin

3.1 In 2010 a number of entertainment companies took action against Newzbin8. Newzbin was determined by the Courts to be a site that indexed unofficial copies of films on Usenet. As a result was shut down. However, the website re-opened under the name Newzbin 2 less than a month later, but now hosted in the Seychelles.

3.2 In 2011, taking a different approach, the Motion Picture Association (MPA), on behalf of its members, sought an injunction against an Internet Service Provider rather than the site's owners, in this case, British Telecom (BT). BT is the largest UK Internet Service Provider (ISP). The MPA sought an order to restrict access to Newzbin by BT's customers. An injunction was granted9 and implemented by BT such that users seeking to access the site using a BT IP address could no longer do so. Other UK ISPs have implemented similar measures in response to further court orders.

3.3 While attracting headlines regarding Internet censorship, in fact the order obtained specifically related to the blocking of specified IP addresses and specified URLs available from the Newzbin website using a specified blocking technology.

3.4 Nevertheless, concerns remain regarding abuse of this blocking procedure. In the UK the opportunity for abuse seems limited as ISPs are looking for rights holders to first obtain a court order directing that they take such action rather than seeking to implement such action upon request by a rights holder.

4. Scarlet Extended

4.1 The concerns regarding abuse of the blocking procedure seemed to be made flesh when SABAM (a collective licensing agency) obtained an injunction from the Belgian courts requiring a Belgian ISP, Scarlet Extended, to install a general monitoring system that would monitor all communications on their network and then filter out copyright infringements.

4.2 However, in November 20110, the CJEU ruled that this measure was inconsistent with EU law because it imposed a general monitoring condition incompatible with the E-Commerce Directive and the applicable fundamental rights of users. The CJEU also confirmed that users' IP addresses are protected personal data.

5. Netlog

5.1 In February 2012, in another case brought by SABAM, a general order to impose a monitoring obligation was sought against the social networking site Netlog. Netlog allowed users to upload content. The Belgian Courts referred the matter to the CJEU, who directed the order be rejected11. Typically references to the CJEU require the issuing of an Opinion by an Attorney General, after which the CJEU issues a judgment. Unusually, in this case the CJEU felt able to dispense with this step and, citing frequently their earlier Scarlet Extended judgment, advised that such a broad general monitoring obligation was unlawful.

6. Dramatico Entertainment

6.1 On 20 February 2012, the UK High Court ruled in a case in which a number of record companies sought an injunction against a number of UK ISPs (these ISPs accounting for some 94% of the UK market) to prevent access to the well-known file sharing website "The Pirate Bay"12. It was found that both users and operators of the Pirate Bay infringed the copyright of the record companies. A further hearing in June will decide which ISPs should block the site and how. Further the Court indicated that it saw no reason why in future the determination of copyright infringement and the seeking of a suitable order should not be dealt with in a single proceeding.

6.2 In this case the writer expects that an order will be granted in similar terms to that granted in Newzbin2 specifying the Internet addresses and URLs to be blocked and the technical means for the ISPs to do so.

7. Conclusions

7.1 The judgments discussed above, while not directly preventing the activities of on-line pirates, show that obtaining access to their services will become increasingly difficult as rights holders will be able to take action to deny access to such websites.

7.2 Further, within Europe, the courts are seeking to safeguard the activities of operators of Internet services and their legitimate users by objecting to overly broad, blanket monitoring obligations being imposed on Internet Service Providers or website operators.

7.3 This is a developing field and Avidity will advise on further related cases.


1 E-Commerce Directive

2 Information Society Directive

3 IP Enforcement Directive

4 In which the ISP is deemed not to be aware of copyright infringement until notified, but then to avoid liability needs to take measures to remove access to the complained of content

5 Data Protection Directive

6 Privacy and Electronic Communications Directive

7 European Convention on the Protection of Human Rights and Fundamental Freedoms

8 Newzbin1

9 Newzbin2

10 C-70/10 Scarlet Extended SA v SABAM

11 C-360/10 SABAM v Netlog

12 Dramatico Entertainment Limited & others v British Sky Broadcasting Limited & others

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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