Newzbin2 ruling sets precedent for online copyright infringement

Out-Law Analysis | 15 Aug 2011 | 1:07 pm | 3 min. read

OPINION: Rights-holders must act decisively to show infringers that they are serious after a High Court ruling forced Britain's largest internet service provider to block access to an infringing website.

The High Court has set a precedent for the blocking of websites that contain infringing content under existing UK copyright laws.

Recent focus on copyright infringement has been centered round the Digital Economy Act (DEA), particularly the section which would permit content owners to target websites that infringe copyright. A recent High Court ruling arguably means that new laws are not required as it has clarified that protection is available for rights-holders under existing legislation; a fact that may have largely been lost amidst the controversy surrounding the DEA.

The ruling in the case brought against BT by Twentieth Century Fox Film Corporation and five other major Hollywood film distributors means that BT must act to block subscribers' access to the Newzbin2 website, which provides links to unlicensed film content. It is the first time that a website-blocking injunction has been issued to an internet service provider (ISP) in the UK on the grounds of copyright infringement.

At first glance it appears to be good news for rights-holders. Under the Copyright, Designs and Patents Act (CDPA) they can obtain a blocking order against an ISP, meaning that ISPs are obliged effectively to help 'police' the internet in certain circumstances. Rights-holders will invariably wish to obtain similar orders to block access to other infringing sites and against other ISPs.

Take a closer look at the facts of the case though and we can see that it is not quite that simple.

So what did the ruling say? It clarified that to obtain such an order the rights-holder must prove their infringement claims in court and convince a judge to make the order sought. It also reiterates the requirement in the CDPA to show that the ISP has actual knowledge that its service is being used for the purposes of copyright infringement.

In Newzbin2 it was pretty clear cut. The vast majority of films were protected by copyright – around 97 per cent in fact. This was one of the factors taken into account by the judge when agreeing to grant the order and deciding that BT knew that its subscribers were using its service to access and download infringing material.

Not all cases will be so clear cut though. There are many sites that contain a mix of content, both legitimate and infringing. It will be much harder for rights-holders to prove their claims where this is the case. It will also be more difficult in such cases to impute knowledge on the part of the ISP.

What the ruling actually does is create a dilemma for rights-holders. On the one hand they will want to send out a clear message to infringers that they are serious about protecting their rights and their ability to make money from their work. On the other, they are unlikely to want to invest time and effort in taking action in cases that are less clear cut, particularly having an application rejected might prove counterproductive.

In all likelihood, for the moment at least, rights-holders will only pursue an action in cases where it is obvious that there are large amounts of infringing content. The floodgates are unlikely to open in the foreseeable future.

Rights-holders can take heart from the ruling though. This was a test case, which has set a precedent for future actions. The complex issues involved have been considered and the future process for obtaining blocking orders, in clear cut cases at least, can only get quicker and less expensive. Indeed the judge himself recognised this in his judgment.

In the not too distant future we will more than likely see the emergence of standard documents for website-blocking applications, meaning that the process can be dealt with fairly quickly. We may even see this becoming a largely paper application, without the need for a lengthy court process to be followed. If this does happen, we will undoubtedly see an increase in the number of applications for website blocking orders, but it will be a steady one.

For this process to be effective in the fight against online copyright infringement, once alerted to the existence of infringing content, rights-holders must act. Failing to do so would signal  that they are not serious about applying these laws to the online world. They need to exercise the powers that they have to act as a deterrent. If they fail to do so it sends out the wrong message to infringers who will continue to act with a blatant disregard for copyright laws.

Kim Walker is an intellectual property law specialist at Pinsent Masons, the law firm behind OUT-LAW.COM.