The High Court very recently handed down its decision in a case between the Football Association Premier League (FAPL) and six of the UK’s main Internet Service Providers (ISP’s), including Sky, BT, Talk-Talk, Virgin Media amongst others. The case highlights the increasingly flexible methods of enforcing intellectual property rights which the Courts are prepared to consider and, indeed, to order.
What was the case about?
The case was brought by the FAPL, who were seeking an injunction, under section 97A of the Copyright Designs and Patents Act 1988, requiring ISP’s to block access to streaming servers. This was the first time such an injunction had been sought to block streaming servers (via their IP address) rather than simply blocking a specific website. The Court referred to this as ‘live blocking’ given that the block would be limited only to when the content was being streamed (rather than a permanent block).
The previous case of FAPL against Sky in 2013, established that ISP’s could be required (under the terms of an injunction) to block access or otherwise impede access to websites which were providing unauthorised (illegal) access to copyright content. However, technology and access to that technology has come a long way in just 4 short years and therefore the Court decided to re-examine whether better methods of protecting the FAPL’s intellectual property rights could be implemented.
What’s changed since the 2013 case?
The Judge, Mr Justice Arnold of the High Court, sets out in his judgment that there are a number of developments since the Sky case which need to be considered, including:-
- The growing use of mobile apps to stream content (it was noted that these don’t rely upon a specific website, instead they are able to connect directly to streaming servers via their IP addresses);
- The relative ease of using mobile streaming apps;
- The availability of high quality unauthorised streams;
- The misconception amongst the general public that it is lawful to access unauthorised streams; and
- The fact that most, if not almost all, streaming servers have been moved offshore to locations with very lax recognition and enforcement of intellectual property rights.
As a result of the developments since 2013 (above), the Judge decided that FAPL’s rights could be better protected by ISP’s blocking access to streaming servers, subject to certain conditions, rather than an ‘outdated’ approach of simply blocking access to infringing websites.
What did the Judge order in this case?
Firstly, and most importantly, the order operates as a ‘live’ blocking order, which only takes effect when Premier League footage is being broadcast.
Secondly, the Order providers for the list of target servers to be re-set each match week during Premier League season.
Thirdly, the Order is for a fixed duration – until the end of the 2016/17 season in May 2017 (although this, in and of itself, is not actually novel, per se).
Fourthly, the Order requires a notice to be sent to each hosting provider each week when one of its IP addresses is subject to blocking.
What basis did the Court have to make such an Order?
The Court found that the operators of the target servers were making ‘acts of communication to the public’ in accordance with Section 20 of the CDPA 1988. Furthermore, the Court held that the operators were doing so in full knowledge of the consequences of their actions and that there was an intention to make profit from the unauthorised streams, in the form of advertising revenue (often referred to as an ‘intention to profit’). As such, the Court had no issues with granting an injunction to protect the FAPL’s intellectual property rights. In addition, save for one of the six ISP’s, all were happy to support the FAPL’s application for an injunction; we suppose that this probably helped!
The case of FAPL v BT and others is quite a development in the world of enforcing IP rights and, in particular, it demonstrates how advancements in technology requires a re-consideration of the usual, traditional approaches to protecting copyright, including whether intermediary injunctions (i.e. the ISP’s being intermediaries between the premier league and the streaming servers) should be only aimed at blocking access to infringing websites. The answer appears to be a resounding ‘no’, with the duty for ISP’s going further than this. Arguably, the order of Mr Justice Arnold in this case could well be used as a platform to enable more creative enforcement strategies to protect intellectual property rights in the future. We’ll have to wait and see.
Here at Hybrid Legal we have a wealth of expertise when it comes to setting up the initial protection for your intellectual property, exercising your intellectual property rights and, ultimately, protecting your intellectual property rights. If you’d like to chat about how we can help you get the most out of your intellectual property then please get in touch: we’d love to hear from you!
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