©-LAW

Is there a communication to the public within the meaning of Article 3(1) of the  InfoSoc Directive  by the operator of a website  [The Pirate Bay, TPB] , if no protected works are available on that website, but there is a system therein by means of which metadata on protected works is indexed and categorised for users, so that these can trace and upload and download the protected works? Does Article 8(3) of the InfoSoc Directive allow the issuing of an injunction against an ISP ordering it to block access for its users to an indexing site like The Pirate Bay? These were the important questions that the  Dutch Supreme Court (Hoge Raad der Nederlanden) had referred to the Court of Justice of the European Union (CJEU) in   Stichting Brein v Ziggo , C-610/15   (also known as   The Pirate Bay   case). The AG Opinion In his   Opinion   in February last   [commented   here ,  here , and to some exte...

Can an injunction be sought against an access provider that would require this to block access not to a website  [as per the standard scenario]  but rather streaming servers giving unauthorised access to copyright content? Can such an injunction consist of a 'live' blocking, ie a block limited to when the relevant content is being streamed?  An application of this kind was recently and  successfully  made - for the first time as far as the UK is concerned - by the Football Association Premier League (FAPL, supported by other rightholders) against 6 main retail internet service providers (ISPs). In yesterday's decision in  FAPL v BT  [2017] EWHC 480 Ch  Arnold J concluded that the High Court has jurisdiction to make an order of the kind sought by FAPL. The law Arnold J noted at the outset how the law on copyright blocking injunctions under  s97A of the Copyright, Designs and Patents Act (CDPA)   [by which the UK transp...

Is there a communication to the public within the meaning of Article 3(1) of the  InfoSoc Directive  by the operator of a website  [The Pirate Bay, TPB] , if no protected works are available on that website, but a system exist by means of which metadata on protected works which is present on the users’ computers is indexed and categorised for users, so that the users can trace and upload and download the protected works on the basis thereof? This is the principal question that the Dutch Supreme Court (Hoge Raad der Nederlanden) referred to the Court of Justice of the European Union (CJEU) in  Stichting Brein , C-610/15 . As readers will promptly recall, this is just the last in a(n impressive, quantity-wise) series of references for a preliminary ruling seeking clarification on the interpretation of the right of communication to the public within Article 3(1) of the InfoSoc Directive, the most immediate precedents being  GS Media   [Kat-cov...

Is there gift more memorable than a blocking injunction? What has been the most significant IP development in the UK this year?  From a policy standpoint (and in the aftermath of the Brexit referendum) the answer is probably the decision of UK Government to ratify the Unified Patent Court Agreement  [ here ] .  From a practical perspective, however, also considering the increasing number of IP infringements occurring online  [this is a general trend: see  here , at p 33]  the most significant domestic development in my opinion has been the  judgment  of the Court of Appeal of England and Wales in  Cartier   [ here ,  here ,  here ] , which upheld the 2014  decision  of Arnold J  [ here  and  here ] , and confirmed that  owners of IP rights other than copyright can seek injunctions against intermediaries to block access to website where counterfeits are available. The UK frame...