Back in the day - well, around 1998 to 2001 when the E-Commerce Directive 2000/31/EC and the InfoSoc (aka Copyright) Directive 2001/29/EC were being negotiated almost in parallel - a lot of time was spent discussing the role of intermediaries such as ISPs in tackling online infringement. The core challenge was balancing a 'hosting immunity' under Article 14 of the E-Commerce Directive with the need for intermediaries to play an effective role in dealing with online infringement hosted on or accessed via their servers.
The outcome was Article 14 of the E-Commerce Directive and Article 8.3 of the InfoSoc DIrective. Whilst ISP's as "hosts" have an immunity under the for hosting illegal content on their servers, Article 8.3 of the InfoSoc Directive provides that "Member States shall ensure that rightsholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right."
Article 8.3 was transposed into UK Copyright law by section 97A of the UK's 1988 Copyright Act, as amended. There have been a series of cases in the UK brought under this section by record companies, on their own behalf and in a representative capacity on behalf of members of the BPI and others, seeking website blocking orders against websites using Bittorent peer-to-peer file-sharing protocol.
Furthermore, 97A has recently been used to seek a website blocking order to combat online trade mark infringement - see Cartier International AG v British Sky Broadcasting Ltd  EWHC 3354 (Ch)
The latest case on the copyright front line is 1967 Ltd & Ors v British Sky Broadcasting Ltd & Ors  EWHC 3444 (Ch) (23 October 2014). It's a short and very lucid judgment and an excellent way to get up to speed on where the law stands on this issue. Four matters must be established in order to be granted - (1) that the Defendants are service providers; (2) that users (i.e. consumers) and/or the operators of the target websites infringe the Claimant's copyrights; (3) that users and/or operators of the target websites use the defendants' (i.e. ISPs') services to do that; and (4) that the Defendants have actual knowledge.
Mr Justice Arnold had no difficulty in finding all four matters established. Paragraphs 11-23 of the judgment are particularly worth reading, in which he analyses whether users and/or operators of the target websites (i.e. the Bittorent sites) infringe the Claimant's copyrights. He finds that users infringe by copying and communicating to the public the Claimant's works and he also finds that the website operators infringe by communicating those works to the public.
The question of who is the "public" was considered in the CJEU's decision this year in Svensson. In that case, the CJEU decided that the provision on a website of clickable links to works freely available on another website does not constitute an act of communication to the public within Article 3(1) of the Information Society Directive. Essentially, the logic was that as the newspaper material was already freely available on the newspaper's website, a link to that site was not a communication to a "new public", because putting material without restriction (e.g. behind a pay wall) was communicating it the whole world. Once you have 'communicated' a copyright work to the whole world, by definition there cannot be a communication to a new public.
However, in 1967 Ltd & Ors vs. BSB, Mr Justice Arnold said that in the case of the 13 target websites, it is a communication to a new public, "...which is to say a public which was not considered by the rightsholders concerned when they authorised the original communication or other act of dissemination of the recordings."
This case illlustrates the practical importance of Article 8.3/section 97A in combatting online IP infringement, both as regards copyright but trade marks too.
Have a good week,