Blocking injunctions - more good news for rights owners

[Len]

The 2017 order granted by the High Court in the Football Association Premier League Ltd v British Telecommunications plc and the subsequent extension of this order ("the FA Case") was a major victory for owners of copyright in broadcasts.

The resulting injunction, requiring the major UK internet service providers to block access to streaming servers that illegally deliver live football streams, has been heralded as incredibly successful in the fight against piracy.

The High Court has again been asked to consider this issue, this time by UEFA, the administrative body for association football in Europe.

UEFA owns the copyright in television broadcasts of all matches in the UEFA competitions and all associated works within those broadcasts (such as replays). These rights are incredibly valuable; BT pays around £360 million per season for them.

This application (which was substantially similar to the application in the FA Case) was supported by all the defendants save for Talktalk (who neither supported nor opposed it). However the court still needed to consider whether it was justified because the order would affect third parties – and orders of this type need to be appropriate and proportionate.

The outcome

For the same reasons as the FA Case (discussed here), the judge found that the order was appropriate and proportionate. The judge also added 3 further points:
 

Further evidence has arisen that highlights the problem of illicit streaming – for example the report Cracking Down on Digital Piracy;

Previous decisions (such as the FA Case) have proved very successful in blocking these problem servers and there has been no evidence of 'overblocking' (i.e. impeding otherwise legitimate business); and

The order that UEFA have asked for contains the same criteria as the order the FA Case, but with an additional safe guard against overblocking.

This is another piece of good news for owners of broadcast copyright. Whilst the fight against piracy is far from over, it is being tackled and the courts are willing to place the burden of fighting it on those who are most equipped to do so.

Whilst the order itself is confidential and the ISPs agreed to (or did not oppose) its terms, one thing that is still unclear is who will bear the cost of implementing it.

As ISP might be minded to oppose this type of application if they felt it would impose onerous costs on them. In the case of Cartier v BskyB[ii] (where a blocking injunction was granted in respect of trade mark infringement as opposed to copyright infringement), the Court of Appeal took the view that "the rightholders should pay the costs of an unopposed application ... [and] the ISPs should generally bear the costs of implementation as part of the costs of carrying on business in this sector". Though there was a dissenting judgment from Briggs LJ who considered that the rightholder should bear the entire cost of the application and the implementation of the order.

This Cartier decision on costs is being appealed to the Supreme Court (due to be heard on the 30 Jan 2018) and interested parties will be keenly awaiting the outcome...