Member Article

 Two recent developments, one positive and one negative, highlight some of the serious issues that face copyright. The positive development is that UK courts have again shown that they are prepared to deal decisively with difficult copyright issues posed by the electronic age. On 13 March 2017, in the case of Football Association Premier League Limited v British Telecommunications PLC, EE Limited, PlusNet PLC, Sky UK Limited, TalkTalk Telecom Limited and Virgin Media Limited, a UK court handed down a very interesting order – described as a “live” order, apparently the first of its kind to have been granted. As the name of the case might suggest, it dealt with the lucrative world of broadcasting rights for Premier League football matches and the illegal streaming of broadcasts. Illegal streaming has seemingly become a real problem as a result of the proliferation of IPTV set-top boxes and other devices that connect directly to streaming services through their IP addresses rather than through internet browsers and websites. What the Football Association Premier League (“FAPL”) wanted to achieve in this case was to cut off access to specific streaming servers. The FAPL got what it wanted. Well-known IP judge, Judge Arnold, decided that the court does have jurisdiction to grant an order cutting off access to streaming servers under the UK copyright legislation, the Copyright, Designs and Patents Act, 1988.

The court ordered the six major internet service providers (“ISPs”) that had been brought to court to block access to specific IP addresses that were delivering pirated streams of Premier League football broadcasts. Judge Arnold decided that UK courts have this power under section 97A of the legislation, a section that talks of the court’s power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright. In coming to the finding that the court has jurisdiction, Judge Arnold referred to a decision of the Court of Justice of the European Union, which held that operators of streaming servers commit an infringement when they take “conscious steps” to connect to and copy a source feed, make it available to a “new public” that hasn’t been authorised to view it, and do so for profit. In addition, the judge said that in cases where the source feed is a satellite or cable broadcast, streaming amounts to transmission by different technical means, something that requires authorisation by the rights holder.

So, why is the order referred as a live one? What’s meant by this phrase is that it’s an order that’s organic, an order that is, in fact, quite high maintenance. For example, blocking access can only take place while the football matches are being broadcast – normal service must resume as soon as the matches are over. Also, the list of target servers is to be updated on a weekly basis as new infringers are discovered. In addition, the order only lasts for two months, ending in May 2017, when the football season comes to an end. It’s a far cry from the kind of order that UK courts have issued in the past, such as those compelling ISPs to block access to websites featuring trade mark infringement. Less cheery news appeared in the UK newspaper The Guardian on 26 April 2017 – the negative development. The title of the article pretty much says it all: “More than half of young people watch illegal streams of live sports, study finds”. The report dealt with the fact that a survey of 1 500 people (including 1 000 millennials) shows that “piracy has become normalized” for millennials, who are far less likely than older generations to rely on traditional subscription services. The survey found that 54% of millennials have at some time watched illegally streamed sports events, and that one third of them do so on a regular basis. The age issue becomes stark when you read that only 4% of those aged above 35 stream regularly. All those who rely on copyright should be very concerned by this comment from a spokesperson for the body that conducted the research, Sports Industry Group: “Unless we are careful we will have a generation of young people who consider pirated sports content to be the norm … that’s a significant challenge not just for rights holders but the whole sector – from sponsors and athletes to ticketholders.” I think it’s safe to say that there’s considerable uncertainty about what is and what isn’t legal when it comes to copyright. Much of this uncertainty is down to the breakneck pace of technological change, and the sheer ease with which materials can be accessed. There’s also clearly a certain degree of normalisation taking place, especially when it comes to younger people. The challenge for those whose livelihood depends on copyright is to make sure that this field of law is better understood.