Internet Service Providers – Policy Makers’ Go-To-Guys

As discussed in my previous blog post (‘General Election 2015: A Vic-Tory for Intellectual Property?’), one of the Conservative Party’s key IP-related manifesto pledges focused on placing greater responsibility on Internet Service Providers (‘ISPs’) to police the Internet. You will also recall that I did undeniably label anyone who believed that an elected majority government would keep to their election pledges as naïve.

Well if the High Court’s recent decision to grant an injunction forcing 5 major ISPs to block websites hosting infringing eBooks is anything to go by, I may well be forced to eat a slice of humble pie.

Decision of the High Court

The Publication Association made an application to the High Court for an injunction under section 97A of the Copyright, Designs and Patents Act 1988 (‘CDPA 1988’). By way of background, section 97A was inserted into the CDPA 1988 by The Copyright and Related Rights Regulations 2003 and gives the High Court the power to grant an injunction against a service provider who has actual knowledge of someone using their service to infringe copyright.

This particular application related to eBooks, being electronic books available to download and view on various devices, most notably tablet computers. Despite this being the first time that section 97A CDPA 1988 has been used to obtain an injunction in relation to websites sharing infringing eBooks, the power has been well used in the past few years in relation to the sharing of music and video content online.

The injunction granted by the High Court is comprised of three main elements: (1) the injunction was granted against 7 major infringing websites (ii) 5 major ISPs have been ordered to block these 7 infringing websites (BT, Virgin Media, EE, Talktalk and Sky) and (iii) the ISPs in question were given 10 days to implement such blocks.

An Undesirable Judgment?

Whilst we can only assume that the High Court’s judgment was well intentioned, is a further extension of the already wide use of section 97A CDPA 1988 the best way to deal with infringing material on the Internet?

  1. Does this address the real problem?

It is well documented, not only within IP circles but also in mainstream media, that major websites hosting infringing video content have been blocked in the recent past and that ISPs have been the ones burdened with the responsibility of enforcing and policing this action. However, it does appear that this continuing need for injunctions indicates that ganging up on the middle men in this scenario is just not working. What this area of the law has failed to achieve is a substantial and significant disincentive to creating infringing works due to it not being those producing infringing materials that are subject to sanctions and Court Orders.

Admittedly, it is easier to pursue five ISPs than hundreds of thousands of people in bedrooms across the globe copying and uploading infringing material onto the Internet. However, the policy driven approach as it currently stands does little to dissuade this behaviour. We are simply penalising the wrong group.

  1. ‘The easy way out’: Are policy makers placing too much responsibility on ISPs?

In September 2013, the Police Intellectual Property Crime Unit (‘PIPCU’) was launched in the UK to protect against crimes concerning breaches of Intellectual Property Rights. The City of London Police’s website (of which PIPCU are affiliated) states that the Intellectual Property Office provided PIPCU with initial funding of £2.56m until June 2015, with a further £3m promised to take PIPCU through to 2017. With funding at just over £5.5m, this should allow PIPCU to actively police the Internet and deal both with websites that it feels are offering infringing material to the public and those individuals behind the uploading of the infringing material.

The work of PIPCU since their inception should rightly be applauded, as it was reported on the City of London Police’s website that towards the end of February of this year, more than 2,000 websites have been blocked in connection with hosting infringing materials. However, this statistic begs the question: ‘why, when there is a designated task force to deal with prosecuting IP infringers, are the legislature and the Courts placing such burdensome obligations on corporations (in this case, ISPs)?’

Perhaps this has something to do with corporate social responsibility – is this the legislature’s attempt to make corporations more aware of their responsibility of making sure that their ‘product’ is not used to encourage or assist the breaking of the law? This is a possibility, as the wide powers granted to the Courts under section 97A CDPA 1988, along with the sanctions for those ISPs who fail to comply with an injunction issued under the legislation, could act as an incentive for ISPs to keep an eye on the users of their service more carefully. However, the fairly recent extension of a section 97A CDPA 1988-style power to the realm of trademark law (see the 2014 High Court decision in Cartier, Montblanc and Richemont v BSkyB, BT, TalkTalk, EE and Virgin) seems to suggest that ISPs are still not as willing to self-police in all areas of IP infringement without being forced to do so by the Courts.

  1. Turning a Blind Eye to Infringement

Whilst statute can often be criticised for being unclear, section 97A CDPA 1988 is initially clear in its terms – an injunction may be granted if an ISP has actual knowledge that someone is using its services to facilitate infringement. However, this clarity ends as swiftly as it began, as for the purposes of defining actual knowledge, the Courts take each case on its own facts. Some minimal guidance is given by section 97A(2) CDPA 1988 and permits the Court to take into account whether a service provider has given their email address to allow swift communication (lifted from section 6(1)(c) of the Electronic Commerce (EC Directive) Regulations 2002 (SI 2002/2013)), whether any notice given includes the full name and address of the sender and whether that notice details the alleged infringement.

In a section of statute that provides the Court and legislature with a vast amount of power over ISPs, does the requirement of actual knowledge, as opposed to merely constructive, implied, imputed or any other kind of knowledge, provide ISPs with a reason to turn a blind eye to copyright infringement so as to avoid the burdensome conditions that can ultimately be imposed upon them?

This is not a suggestion that ISPs would go out of their way to avoid being notified. This idea simply proposes that should the Courts continue to use their powers under section 97A CDPA 1988, ISPs may adopt a passive approach toward the prevention of copyright infringement, through simply sitting back and waiting to be notified of a potential infringement as opposed to actively patrolling their product to source them out and block them. Surely, a system of active policing would be for the greater good as far as policy makers are concerned?

Where Next for ISPs?

As alluded to above, it was clearly stated by the Conservatives in their pre-election Manifesto that getting tougher on ISPs was on their agenda for the next 5 years. I am not sure that anybody expected a judgment concerning the use of section 97A CDPA 1988 to follow so shortly after the General Election; however, should this be a sign of things to come, ISPs may well be far too busy complying with Court Orders to take calls regarding the problems with your broadband!

Note from the author – at no stage does the content of this blog post offer or provide legal advice of any form and should not be relied on as such. Should anyone have any personal/professional issues concerning Intellectual Property, please seek legal advice. For further information, please see the full Disclaimer under the ‘About’ tab.

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