Another blocking injunction granted (but mere hyperlinking and framing should not infringe)

Mr Justice Arnold

Last week Mr Justice Arnold issued an intriguing order (promptly analysed by The 1709 Blog) which touched upon issues that are dear to copyright and internet lawyers. The case concerned in fact "another [successful] application for website-blocking orders under section 97A [CDPA], which implements Article 8(3) of [the InfoSoc Directive]".

The Claimants were major film studios Paramount, Sony, 20th Century Fox, Universal Pictures, Warner Bros and Disney. The Defendants were UK retail internet service providers (ISPs) BSkyB, BT, EE, TalkTalk, Telefonica and Virgin Media. 

The targets of the application were two websites (solarmovie.so and tubeplus.me) that provided unauthorised access to streams of a large range of films and television without, however, hosting any infringing content. Users who wished to access content via one of these websites were provided with a number of links in response to searches or when browsing. Typically, clicking on a link enabled the user to view a stream of the chosen content on an embedded player. 

The Claimants applied for a blocking injunction. As recalled by Mr Justice Arnold, Section 97A requires four conditions be met:

1. The Defendants are service providers;
2. Users and/or the operators of the websites infringe the Claimants' copyrights;
3. Users and/or the operators of the websites use the Defendants' services to do that;
4. The Defendants have actual knowledge of this.

The first condition did not require much consideration, as the Defendants are service providers.

But were the users and/or operators of the websites infringing the Claimants' copyrights? To address this question, Mr Justice Arnold deemed it necessary to assess whether there was a communication to the public of the Claimants' works.

Is a link a communication to the public? No, but those websites did more than just linking

This is a question which has been haunting EU copyright minds for a while, and has elicited a bunch of references to the Court of Justice of the European Union (CJEU) [Case C-466/12 Svensson (here), Case C-279/13 C More Entertainment (here), and C-348/13 BestWater (here, but this case has been stayed pending the decision in Svensson)], independent opinions [by the European Copyright Society, on which see here and here, and ALAI, on which see here)], and contrasting approaches at the national level [eg here].

Mr Justice Arnold started his analysis by recalling that Section 20 CDPA confers rights of communication to the public which give effect and also go beyond Article 3(1) of the InfoSoc Directive [it is worth noting that one of the questions in Svensson is actually whether Member States can understand this right as going beyond what is provided by the InfoSoc Directive], and that the CJEU has

Merpel is certainly linking, but ...

interpreted the scope of communication to the public in a number of recent judgments. 

According to the judge, among other things, CJEU understanding of communication to the public is that this right must be interpreted broadly; there is no communication to the public where the viewers have no access to an essential element which characterises the work; and a mere technical means to ensure or improve reception of the original transmission in its catchment area does not constitute a communication.

After summarising the issues at stake in Svensson, C More Entertainment and BestWater, Mr Justice Arnold noted that whether hyperlinking can be tantamount to a communication to the public is a difficult and controversial issue. Therefore he found "it surprising [as everybody else did, muses still-shocked Merpel] that the Court of Justice has decided to proceed to judgment in the Svensson case without the benefit of an Advocate General's opinion." 

... Is she also communicating?

Mr Justice Arnold highlighted that 

"[I]t is arguable that the mere provision of a hyperlink is not enough to constitute communication to the public (particularly if the hyperlink is not directly to a source of the copyright work) ... [I]t is [also] arguable that it makes no difference whether or not the source of the copyright work to which the hyperlink links is licensed by the copyright owner ... [I]t is [also] arguable that it makes no difference whether clicking on the links results in framing (i.e. the work being presented within the frame of the operator's website) or not."

Following earlier judgment in FAPL v Sky, the judge found that both the websites infringed the Claimants' right of communication the public. What they provided went beyond the mere provision of a hyperlink, in that "it would be very difficult for members of the public to access much of the content directly from the host sites if it were not made available by the Websites. Even where the content could be accessed from the host sites, the Websites make it much easier for members of the public to find what they want. Viewed from the perspective of the user, the Websites do in a very real sense make the content available to the public."

This said, the judge quickly considered the two last requirements of Section 97A CDPA and concluded that (1) both users and the operators of the websites in issue used the Defendants' services to infringe the Claimants' copyrights, and (2) the Defendants had actual knowledge that users and the operators of the Websites use the Defendants' services to infringe copyright.