It has been just over two years since the High Court of England and Wales first considered the liability of ISPs for digital copyright infringement by users of their service. During this period, the High Court has heard at least four requests by copyright owners and on each occasion has granted an injunction against one or more ISPs (generally the six major ISPs in the UK which account for nearly all of the market). Though an ISP is only an intermediary and may not be an infringer itself, it is now clear that the High Court can order an ISP to take certain measures to block, or at least impede, access by their customers to on-line content that infringes the claimant’s copyright. Such measures might be necessary where it is impractical or impossible for a claimant to serve proceedings directly on those responsible for the infringing online content.
The jurisdictional framework to injunct an intermediary is set out in section 97A of the Copyright, Designs and Patents Act 1988 which implements Article 8(3) of Council Directive 2001/29/EC (the InfoSoc Directive). Section 97A 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 all instances the Court first has to determine if copyright has been infringed by a website (e.g. Pirate Bay) or by the user of such websites. It is clear that in cases involving peer-to-peer file sharing the users of the downloaded files, comprising copyright work without a licence from the owner, will usually be infringing copyright.
The ISP must have actual knowledge of a person using their service to infringe copyright. The High Court has given actual knowledge a wide interpretation: it does not require the person who is infringing to be identified or identifiable and one can have actual knowledge that someone is infringing copyright without knowing the identity of the person. Furthermore, knowledge might be satisfied where the ISP is given notice of the infringement with a sufficiently detailed notice and opportunity for the ISP to investigate the position. The fact that the ISP might not know the specific details of each particular infringement is no impediment to the finding of actual knowledge.
The High Court recognised in its first decision on this topic in 20th Century Fox v BT that s.97A confers a specific and broad jurisdiction to grant an injunction. It is not confined to granting an injunction prohibiting the continuation of infringement of which the ISP has actual knowledge. An injunction may be granted to require the ISP to take measures which contribute to preventing further infringement of that kind. This is one of the most crucial and useful aspects of s.97A for rights owners because it does not limit the injunction to only stopping known infringing acts but extends to preventing future infringements.
Once the jurisdiction was established in the 20th Century Fox v BT decision, ISPs did not objected to the blocking orders in the Dramatico, EMI and Football Association Premier League cases, but even then the onus remained on the rights holder to convince the Court it was appropriate to make the Order sought and, in particular, that the Order was proportionate. There is a general obligation for the Court to consider the proportionality of remedies and also for the Court to strike a balance between the protection of IP rights and the protection of fundamental rights of individuals who are affected by such measures. It is apparent that blocking orders interfere with ISP operations and there is a prospect that the obligations on an ISP might become oppressive, hence why the proportionality of such orders must be considered by the Court.
In the cases before the High Court, the blocking injunction ordered made use of technical measures which were already available. Therefore, the cost for the ISP to comply with the order was modest. This was a factor in considering proportionality. Further, the Court also considers whether the Order would be effective and could be circumvented and whether the Order is necessary and appropriate to protect the IP rights of the claimants. In all of the above mentioned cases the Court found that the IP rights clearly outweighed the rights of the operator of a website who has profited from infringement on a large scale.
Section 97A injunctions are a very useful tool for copyright owners but have the potential to burden ISPs if the court is not vigilant in its exercise of the jurisdiction. The recent cases show a trend that ISPs might not oppose such blocking orders so it may be that the jurisdiction, when exercised in an established manner, will evolve into a streamlined and cost effective procedure to obtain an injunction against an ISP. The next stage in the evolution of section 97A will be around where the limits of proportionality lie. For example, what happens if the ISP does not already have the technology required to effectively block a website? In the meantime, the balance is currently in copyright holders’ favour to compel ISPs to prevent UK users from accessing infringing online content.
20th Century Fox v BT  EWHC 1981, Dramatico v BSkyB & Ors  EWHC 268, EMI v BSkyB & Ors  EWHC 379 , Football Association Premier League v BSkyB & Ors  EWHC 2058