Two recent UK cases have underlined the vulnerability of internet service providers to allegations of IP infringement. ISPs can no longer says that they merely provide the roadways along which traffic, both good and bad, can pass. They are now being expected to police those roads and impede the progress of wrongdoers.
In 1967 Ltd v British Sky Broadcasting Ltd, a case brought by record companies and music industry representative bodies (the BPI and PPL), the court ordered blocking by the UK’s five main ISPs, Sky, BT, EE, TalkTalk and Virgin, of 21 websites. These websites involved offered an organised directory of content where users could browse and select from sound recordings and other content, and then illegally download it. The judge decided that the websites were infringing by communicating copyright protected work to the public, authorising infringement by their users and acting as joint infringers with users.
The ISPs will have to block access to the infringing websites at their own cost.
This follows another recent decision (Cartier International AG v British Sky Broadcasting Ltd) against the same ISPs. That case was brought luxury brand owners, Richemont, who said that their CARTIER and MONTBLANC trade marks were infringed by use on websites offering counterfeit products.
There was some uncertainty here because Article 11 of the EU Enforcement Directive, that deals with IP owners obtaining blocking orders against intermediaries, had not been spelled out in UK law. The Government had taken the view that the general rules on granting injunctions were enough and a specific extra rule was not needed. (In the music case the record companies were able to call on a specific provision in the Copyright, Designs and Patents Act 1988 that deals with injunctions against service providers.)
The Cartier decision goes into detail about how blocking of websites might be achieved, and will provide a useful tool for IP owners in the future.