Abstract Union des Assocations Européenes de Football v British Telecommunications Plc & Ors  EWHC 3414 (Ch) The High Court of England and Wales has granted an order requiring the major Internet service providers in the UK to block access to unauthorized Internet streams of UEFA football matches. Legal context Section 97A of the Copyright, Designs and Patents Act 1988 (CDPA), which implements Article 8(3) of Directive 2001/29/EC provides that a court may grant an injunction ‘against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright’. ‘Service provider’ is defined by Regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013 and has been interpreted as including Internet service providers. Facts Union des Associations Européenes de Football, known more commonly by its acronym UEFA, is the governing body for football in Europe. It organizes a number of competitions, which include the European club tournaments ‘UEFA Champions League’ and ‘UEFA Europa League’. The tournaments attract television viewers in the millions in the UK, and the rights to broadcast the tournaments in the UK are very valuable. British Telecommunications Plc (BT), one of the defendants in the present case, currently pays approximately £360 million per season for these broadcasting rights. Evidence submitted by UEFA established that it owns the copyright in the television broadcasts of the tournament matches, in films (namely replays) and in artistic and musical works incorporated in the television broadcasts (such as theme music and logos). UEFA brought the present case against BT in its capacity as one of the main Internet service providers in the UK, along with five other major providers: EE Limited, Plusnet Plc, Sky UK Limited, TalkTalk Telecom Limited and Virgin Media Limited. UEFA sought an order, pursuant to section 97A CDPA, requiring the defendants to block, or at least impede, access to streaming services which deliver infringing live streams of UEFA tournament matches to consumers located in the UK. The order sought was ‘live’, ie only having effect when tournament matches would be transmitted. This reflects the advances made in being able to monitor infringing live streams in real time. Analysis Arnold J, sitting in the High Court (Chancery Division), noted the similarities between the present case and two prior cases heard by him brought by Football Association Premier League against the same defendants (Football Association Premier League Ltd v British Telecommunications Plc & Ors  EWHC 480 (Ch),  ECC 17 (‘FAPL I’) and Football Association Premier League Ltd v British Telecommunications Plc & Ors  EWHC 1877 (Ch), (‘FAPL II’)). As in FAPL I, each of the defendants except TalkTalk supported the application, and TalkTalk neither supported nor opposed the application. Nevertheless, as the order would affect third parties, namely the operators of the servers which would be affected by the order, Arnold J was still required to determine whether granting the order sought was appropriate. First, Arnold J considered whether the jurisdictional requirements of section 97A CDPA were satisfied. In FAPL I he had expressed the requirements of section 97A CDPA as follows: First, that the Defendants are service providers. Secondly, that users and/or the operators of the [targeted servers] infringe FAPL’s copyrights. Thirdly, that users and/or the operators of the [targeted servers] use the Defendants’ services to do that. Fourthly, that the Defendants have actual knowledge of this. Arnold J was satisfied that these requirements were met, for the same reasons as in FAPL I. In FAPL I, on the question of whether users and/or operators of the targeted servers infringed FAPL’s copyright, Arnold J had found, inter alia, that the operators of the targeted servers commit an act of communication of the copyright works requiring authorization, and that where streams originally derive from a cable or satellite broadcast, the stream constituted a different technical means of transmission which also required a separate authorization from the rightholder. He noted that these conclusions were supported by the subsequent decisions in of the Court of Justice of the European Union in Case C-610/15 Stichting BREIN v Ziggo BV  EU:C:2017:456, – and Case C-265/16 VCAST Ltd v RTI SpA  EU:C:2017:913, –, respectively. Arnold J then considered whether it was appropriate and proportionate to grant the order. Again, he dealt with this point in short order, relying upon his reasoning in FAPL I. In FAPL I, he had expressed this question as the need to balance the infringement of the rightholder’s rights against the interference with the defendants’ freedom to carry on their business, and Internet users’ freedom to access and impart information. He noted in FAPL I that the defendants already had (or were at that time acquiring) technology to block specific servers, hence the blocking order would not affect their business activities. He also considered the risk of ‘overblocking’, whereby the order might affect legitimate services. In the present decision, he noted that evidence filed as to the effect of the orders granted in FAPL I and FAPL II confirmed that overblocking had not occurred, and that the orders had been effective in targeting unauthorized streams. The order granted in FAPL I and FAPL II contained three criteria for the order to take effect against an allegedly infringing stream. Two of these criteria are that (i) the rightholder, and the contractor it uses to monitor potentially infringing streams, must ‘reasonably believe that the server has the sole or predominant purpose of enabling or facilitating access to infringing streams’, and (ii) that the rightholder and its contractor must not ‘know or have reason to believe that the server is being used for any other substantial purpose’. One FAPL I criterion remains confidential so as to prevent operators of targeted servers from circumventing the criteria set out in the order. The order sought by UEFA in the present case incorporated the three criteria from the FAPL I and FAPL II orders, along with an additional criterion to further safeguard against overblocking. Arnold J agreed that the additional criterion should also be kept confidential for the same reasons as in FAPL I and FAPL II. Arnold J granted the order sought, and permitted that some of the evidence in support of the application, along with part of the order, be kept confidential. This was on the basis that the information was commercially sensitive and, if made public, would assist the operators of targeted servers in attempts to circumvent the order. Practical significance The court’s willingness to grant orders preventing access to streams of copyright infringing content, which operate often in real time and with the flexibility to revise the list of servers affected on a weekly basis, provides rightholders with an effective weapon against online copyright infringement, provided they have the technical measures in place to identity such streams. This decision, along with FAPL I and FAPL II, also demonstrates the increasingly sophisticated steps rightholders such as UEFA are taking to monitor illicit steams with a view to having access to those streams restricted. In FAPL I, it was noted that service providers can detect spikes in traffic which correlate with broadcast times of matches almost in real time. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)
Journal of Intellectual Property Law & Practice – Oxford University Press
Published: May 8, 2018
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