Look out streamers

Football Association Premier League Ltd v British Telecommunications Plc
Chancery Division
13 March 2017
Case Analysis
Where Reported
[2017] EWHC 480 (Ch);
Case Digest
Subject: Intellectual property Other related subjects: Sport; Media and entertainment
Keywords: Blocking injunctions; Copyright; Football matches; Infringement; Internet service providers; Proportionality; Streaming media

Summary: The court granted a blocking injunction requiring six internet service providers to block customer access to streaming servers that infringed the copyrights of the Football Association Premier League by streaming live match footage without permission. The injunction was proportionate, of short duration and contained safeguards over and above those previously adopted in the context of website blocking.

Abstract: The claimant governing body of the football Premier League applied for an injunction requiring the defendant internet service providers to block their customers' access to certain streaming servers.
The claimant owned the copyright in the televised live footage of Premier League matches. The defendants were licensed to transmit the footage to consumers who purchased subscriptions to watch it. However, streaming servers were making live footage available to a large number of consumers who were connecting directly to the servers via set-top boxes and mobile devices rather than paying for subscriptions. The claimant sought a blocking injunction under the Copyright, Designs and Patents Act 1988 s.97A. The order would be effective only during live match broadcasts and would last only to the end of the current season. Weekly notices would be sent to each hosting provider that would be subject to blocking. Anyone claiming to be adversely affected by the order could apply for it to be varied or set aside. Five of the six defendants supported the order; the other did not oppose it. However, given that the order would affect third parties, the court had to consider whether it had jurisdiction to make the order and whether it should exercise its discretion to do so.

Held: Application granted.

(1) The four matters to establish jurisdiction under s.97A were satisfied. First, the defendants were service providers within the meaning of the Electronic Commerce (EC Directive) Regulations 2002 reg.2. Second, the operators and users of the streaming servers infringed the claimant's copyrights. Users who accessed a stream caused copies of match footage to be created in the memory of their device. The server operators communicated the footage through streams viewed by a large number of people who, in principle, would not be able to enjoy it without purchasing a subscription from a licensed provider. Those people were a "new public" that was not already taken into account by the claimant or its licensees when they authorised the broadcast of the footage to their paying subscribers, Svensson v Retriever Sverige AB (C-466/12) EU:C:2014:76 and GS Media BV v Sanoma Media Netherlands BV (C-160/15) EU:C:2016:644 applied. The communication was targeted at the UK public and the server operators were authorising the copying by their UK users, Football Association Premier League Ltd v British Sky Broadcasting Ltd [2013] EWHC 2058 (Ch) applied. Third, the defendants' internet access services were used to commit the copyright infringements as they were essential in enabling users to access the streaming servers and obtain copies of the match footage. Fourth, the defendants had actual knowledge of the infringing use of their services (see paras 28-42 of judgment).

(2) The overriding question was whether the order would be proportionate having regard to the competing rights of those affected by it, Cartier International AG v British Sky Broadcasting Ltd [2016] EWCA Civ 658 followed. First, the order would not impair the defendants' freedom to carry on business. Five of them positively supported it. It would not interfere with the provision of their services to their customers and would not require them to obtain new technology. Second, to the limited extent that the order would interfere with the rights of internet users to impart or receive information, that was justified by the legitimate aim to prevent infringement of the claimant's copyrights on a large scale. Third, the order would be proportionate to that aim. Evidence suggested that it would be effective and dissuasive in that it would substantially reduce infringements by UK consumers accessing the streaming servers. Blocking orders had caused a material reduction in the number of UK users who accessed blocked websites: the same might be expected of blocked streaming servers, Cartier considered. Blocking access to streaming servers was likely to be more effective than blocking websites that embedded or linked to server streams. The improved technology of the claimants and defendants meant that it was feasible to identify and block streaming servers much more rapidly, leading to the prevention of an even greater proportion of potential infringements. It was also hoped that blocking access would help educate UK consumers that accessing infringing streams was unlawful. Fourth, there were no alternative measures available to the claimant that would be as effective as the order but less onerous. Fifth, the order was not unduly complicated or costly. Sixth, the order's targeted nature avoided creating barriers to legitimate trade. The vast majority, if not all, of the content streamed by the servers during the relevant time periods infringed copyrights. Any interference with legitimate content would only be temporary due to the very short duration of each instance of blocking. Seventh, the order contained additional safeguards over and above those previously adopted in the context of website blocking. Accordingly, it should be made (paras 43-54, 57-70).

Judge: Arnold J

Posted By: Old Git, Mar 21, 09:29:08