SCL Meeting Report: “20th Century Fox v BT – Copyright Strikes Back?”

November 11, 2011

On 7 November 2011 at CMS Cameron McKenna’s offices, SCL’s London Group held a successful and lively session on the recent groundbreaking case of 20th Century Fox v BT, and considered its implications for rights holders, intermediaries and the development of copyright law in the digital age. The meeting was chaired by Michael Taylor of 4 Pump Court (Chair of the SCL London Group) and included a number of high profile, high quality speakers who each brought a different perspective and valuable insight to the proceedings. The meeting concluded with an engaging and lively question and answer session.

The original judgment in 20th Century Fox v British Telecommunications Plc, handed down on 28 July 2011, concluded that BT should block access to Newzbin 2, a web site responsible for large-scale copyright infringement. The claim was the first such injunction to be brought under s 97A of the Copyright, Designs and Patents Act 1988, and the finding hinged on the court concluding that the service provider had, or could be deemed to have, “actual knowledge” of another person using their service to infringe copyright, despite the ISP not being responsible for the infringing activities. More recently, on 26 October 2011, the court clarified a number of points relating to the form of, and the related costs of, the order granted.

First up was Simon Baggs, a Partner in Wiggin LLP. Simon acted for the rights holders in the case in question and also in the highly topical and relevant current judicial review of the Digital Economy Act. In a talk entitled ‘Reservoir Dogs and Alice in Wonderland’, Simon outlined the nature of the infringing Newzbin 2 site, the effectiveness of blocking injunctions and the rationale for the decision, which he believed to be that the price that intermediaries, such as ISPs, should pay for the immunities that they enjoy is their exposure to such injunctions. He highlighted that, in the particular case, the cost of implementing the order was allocated to BT as a cost of carrying on their business. Simon finished with a brief mention of a possible voluntary scheme for obtaining such injunctions in future, which would include some form of judicial oversight and ISP cooperation.

Next Nigel Paterson, General Counsel for BT Retail and Head of Competition and Regulatory Law for BT Group, walked us through the key points of the case and explained BT’s rationale for seeking to contest the application. This was a test case – an injunction of this type had never been granted before. Nigel also identified the judge’s view that such a court order would be a defence to any third-party claims that might arise. Nigel explained that BT had been required to pay for the implementation of the order on the basis that the costs were modest and proportionate, and the costs of such measures would need to be reviewed on a case-by-case basis. Nigel outlined the ‘Cleanfeed’ technology used, the circumstances in which BT could suspend the blocking measures and the process by which rights holders could notify BT of new URLs and IP addresses associated with the site. Nigel referred to the limitations of technology and explained that such injunctions need to be part of a wider strategy to stop copyright infringement, as on their own they would not solve the underlying problem.

Following on from Nigel, Professor Chris Reed of the Centre for Commercial Law Studies at Queen Mary University of London talked us through the changing nature of copyright law. He explored the evolution of copyright law and questioned the legitimacy and relevance of it to many individuals today and referred to the influence of mass norms or behaviour. He argued that, unless and until people were involved in the development of copyright law that represented their values, it would never be complied with consistently. Chris finished by outlining his views for the future, advocating a form of ‘creative destruction’ of the existing law to enable fundamental copyright reform, but concluded that there will always be piracy in one form or another.

Finally Guy Tritton of Hogarth Chambers brought the strands together drawing out some of the key points made by the other speakers and praising what he considered to be an extremely well reasoned decision in the case. With enforcement against the individual usually not a cost-effective option, some other means of redress under the law is needed – such injunctions provide such a means. Guy explored the nature of these injunctions and also questioned the prospects of the upcoming DEA.

The talks were followed by half an hour of enthusiastic questions ranging from the technical to the legal, questioning broader principles of intermediary liability and the possible framework for future applications of this sort. The overall consensus was that 20th Century Fox v BT was an important first instance decision in a developing branch of copyright enforcement and would be of relevance for some time to come.

Thanks go to the speakers, to CMS Cameron McKenna for hosting and sponsoring the event and to Michael Taylor for chairing such a successful meeting.

Scott Fairbairn is a solicitor in the IP, Technology and Litigation team at CMS Cameron McKenna LLP and a member of the SCL London Group Committee.