Summary

The judgment of the European Court of Justice in Svensson v Retriever Sverige AB (C-466/12) [2014] Bus. L.R. 259 did not detract from the High Court's reasoning in earlier cases involving injunctions under the Copyright, Designs and Patents Act 1988 s.97A requiring internet service providers to impede customers' access to peer-to-peer file-sharing websites. Accordingly, the position was still that where United Kingdom users of a website uploaded content, there was communication of copyright works, the communication was to the public, and the act of communication took place in the UK.

Facts

The claimant record companies (R) claimed an injunction under the Copyright, Designs and Patents Act 1988 s.97A, requiring the defendant internet service providers (S) to block or impede their customers' access to 21 peer-to-peer file-sharing websites.

The websites were BitTorrent indexing websites and were similar in their operation and service to websites held in earlier cases to be infringing copyright. They provided an organised directory of content which users could search and browse. Having selected content, users downloaded torrent files either from the websites or from other sites to which the websites provided links. The content files would be downloaded from the "swarm", namely the community of computers sharing the file. Thirteen of the websites did not permit uploads by users, but gathered links to torrent files using "crawling" technology; however, the underlying technology and the way the links to the files was presented was essentially the same as on the other websites. S, who between them had a market share of 95 per cent of United Kingdom broadband users, neither consented to nor opposed R's application.

Held

When a website user selected and downloaded a torrent file and content files to obtain a copy of particular content, he copied the content in the files onto his computer. If the content files comprised a copyright work and the user did not have the licence of the copyright owner, he infringed copyright. R had adduced evidence that the websites had a large number of UK users, that they listed a large number of torrents for commercially available music, and that R had not granted the websites or their users licences to reproduce their recordings. Accordingly, UK users of the websites used them to download and make copies of large numbers of recordings, in which the copyright was owned by R, without the licence of the rightholders, and thereby infringed those copyrights. It was immaterial that users of 13 of the websites obtained the torrent files from third party websites rather than directly from the target websites themselves (see paras 12-14 of judgment). The judgment of the European Court of Justice in Svensson v Retriever Sverige AB (C-466/12) [2014] Bus. L.R. 259 did not detract from the instant court's reasoning in earlier cases, Svensson considered and EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 (Ch), [2013] Bus. L.R. 884, Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch), [2013] E.C.D.R. 14 and Paramount Home Entertainment International Ltd v British Sky Broadcasting Ltd [2013] EWHC 3479 (Ch), [2014] E.C.D.R. 7 applied. Accordingly, the position was still that where UK users of a BitTorrent website uploaded recordings as part of a swarm, there was communication of copyright works, the communication was to the public, and the act of communication took place in the UK. It followed that UK users of the websites infringed. It was immaterial that 13 of the websites did not permit uploading of torrent files (paras 16-17). The websites' operators communicated R's recordings to the public. The operators communicated the recordings by electronic transmission, actively intervening so as to enable users to access and download content easily. It was relevant that the communication was of a profit-making nature. The communication was to the public. In at least eight cases, that was because the communication used a different technical means to that of the previous communication of the content. Even if the communication was not by a different technical means in relation to the 13 websites using crawlers, it was communication to a public which had not been considered by R when they authorised the original communication. Recordings were made available to all the users of the websites, a large and indeterminate class of people, without the users having to purchase them from authorised sources. The acts of communication were targeted at the public in the UK: the websites were in English; a large number of visitors were from the UK; many UK chart albums were available on the websites; and advertising on the websites was targeted at the UK. The operators authorised UK users' infringements. The websites went to considerable lengths to promote the downloading of torrent files, and hence infringing content. The operators were jointly liable for infringements by UK users, Dramatico Entertainment Ltd v British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), [2012] 3 C.M.L.R. 14 and EMI applied (paras 18-23). Both users and operators had used S's services to infringe R's copyrights. S had knowledge of that, having been informed by R. S had not advanced any reason why the court should not exercise its discretion to make the orders sought, although the onus remained on R to satisfy the court that it was appropriate. The orders would not be disproportionate; in particular, the number of websites to be blocked did not impose disproportionate implementation costs on S, Cartier v British Sky Broadcasting Ltd [2014] EWHC 3354 (Ch) applied (paras 24-28).

Application granted