Mr Justice Arnold in the case of EMI v BSkyB has ordered five of the major ISPs to block access to three music file sharing websites. In doing so, he has clarified some of the ambiguity of the
Mr Justice Arnold in the case of EMI v BSkyB has ordered five of the major ISPs to block access to three music file sharing websites. In doing so, he has clarified some of the ambiguity of the Football Dataco v Sportradar ruling by confirming that infringement can take place in both the country of origin and the country where the information is targeted.
Infringement
Arnold J held that the communication took place in the UK because the uploaders were located in the UK. In doing so, he referred to Football Dataco v Sportradar where the CJEU held that the infringing act occurred in "at least" the state where the information is targeted at users. In Mr Justice Arnold's view, the CJEU appeared to accept that an infringing act was also committed in the member state where the copyright work was uploaded. "This reading would be consistent with the natural meaning of "making available". It would be odd if this did not include the place of origin".
Arnold J also saw nothing in the Football Dataco v Sportradar ruling to exclude the possibility that more than one person could be involved in an act of communication to the public. The operators of the infringing websites provided a mechanism to achieve communication and the users provided the actual recordings. The communication by the operators occurred in the UK because the websites clearly targeted users in the UK (there were large numbers of recordings by UK artists, the default language was English and prices were advertised in pounds).
The website operators authorised the users infringing acts by going "far beyond mere enabling or assistance". They sanctioned, approved and countenanced the infringements and purported to grant users the right to do the acts complained of. Finally they profited form their activities so they incited or persuaded their users to commit infringements and acted pursuant to a common design to infringe.
Discretion to grant an order under s97A
The ISPs had actual knowledge of the infringements because they received weekly notifications and specific notice prior to the claim being issued. Taking into account the competing interests of those affected, a blocking injunction would be proportionate. The cost of compliance would be modest, as it would require the ISPs to use existing technology. Overall, the order was appropriate to protect the Claimants' IP rights and those interests outweighed the rights of the users who could obtain copyright works from many lawful sources. The orders were narrow and targeted and contained safeguards in the event of any change of circumstances.
Infringement
Arnold J held that the communication took place in the UK because the uploaders were located in the UK. In doing so, he referred to Football Dataco v Sportradar where the CJEU held that the infringing act occurred in "at least" the state where the information is targeted at users. In Mr Justice Arnold's view, the CJEU appeared to accept that an infringing act was also committed in the member state where the copyright work was uploaded. "This reading would be consistent with the natural meaning of "making available". It would be odd if this did not include the place of origin".
Arnold J also saw nothing in the Football Dataco v Sportradar ruling to exclude the possibility that more than one person could be involved in an act of communication to the public. The operators of the infringing websites provided a mechanism to achieve communication and the users provided the actual recordings. The communication by the operators occurred in the UK because the websites clearly targeted users in the UK (there were large numbers of recordings by UK artists, the default language was English and prices were advertised in pounds).
The website operators authorised the users infringing acts by going "far beyond mere enabling or assistance". They sanctioned, approved and countenanced the infringements and purported to grant users the right to do the acts complained of. Finally they profited form their activities so they incited or persuaded their users to commit infringements and acted pursuant to a common design to infringe.
Discretion to grant an order under s97A
The ISPs had actual knowledge of the infringements because they received weekly notifications and specific notice prior to the claim being issued. Taking into account the competing interests of those affected, a blocking injunction would be proportionate. The cost of compliance would be modest, as it would require the ISPs to use existing technology. Overall, the order was appropriate to protect the Claimants' IP rights and those interests outweighed the rights of the users who could obtain copyright works from many lawful sources. The orders were narrow and targeted and contained safeguards in the event of any change of circumstances.