Within a week of his judgment in Cartier International AG & Others v British Sky Broadcasting Limited & Others  EWHC 3354 ("Cartier v Sky"), Arnold J. has handed down his decision in another request for website blocking orders, this time to prohibit copyright infringement pursuant to section 97A of the Copyright, Designs and Patents Act 1988, in 1967 Ltd & Others v British Sky Broadcasting Ltd & others
1967 Ltd & Others v British Sky Broadcasting Ltd & others.
The request from 1967 Ltd and others, against the same internet service providers (ISPs) which were the subject of the Cartier v Sky decision, was for blocking orders against 21 'Target Websites', all of which use the Bittorrent peer-to-peer file-sharing protocol. Interestingly, the users of 13 of those websites obtain the torrent files from third party websites by clicking on the links provided by those Target Websites, rather than directly from the Target Websites themselves.
Although there have been a series of orders over the last three years requiring ISPs to block, or at least impede access to, websites pursuant to s.97A of the Copyright, Designs & Patents Act 1988 (CDPA), Arnold J took the opportunity of 1967 Ltd's request to revisit the principles, noting the Court of Justice of the European Union's decision in the Svensson case (C-466/12  Bus LR 259) and the evidence on the effectiveness of such orders considered by the High Court (Arnold J.) in the Cartier v Sky case.
Arnold J. held that since none of the relevant copyright owners and exclusive licensees had granted the Target Websites or their users licences to reproduce their recordings and UK users of all of the websites used them to download and make unlicensed copies of recordings, it was immaterial whether users accessed the torrent files by clicking on links provided by the Target Websites or directly from the Target Websites themselves.
Arnold J. therefore held that the blocking orders sought would be made, subject to the inclusion of the following safeguards, which he had held to be required in the Cartier v Sky decision:
- the orders should expressly permit affected subscribers to apply to the court to vary or discharge the orders; and
- the page displayed to users who attempt to access blocked websites should not merely state that access to the website has been blocked by court order but also identify the party or parties which obtained the order and state that affected users have the right to apply to the court to vary or discharge the order.
However, in contrast to the decision in Cartier v Sky, no requirement was made for the inclusion of a 'sunset clause' in these s.97A orders, which would limit the term of their effect.