As reported by ISP review, a number of UK ISPs are having to block yet more web sites.
An example is SolarMovie who appear to be site that streams films directly, rather than a file sharing or download site.
This seems to follow a trend of court orders issued under section 97A of The Copyright, Designs and Patents Act 1988 which includes the infamous Pirate Bay, blocks for which are clearly completely ineffectual.
However, what is interesting here is a judgement in April, which basically puts simply using the Internet to access material on the Internet as outside the scope of copyright. It is not "copying", it is accessing the information remotely.
The logic is similar to the fact that a person reading an illegitimate copy of a book is not themselves breaching copyright by so reading it. Accessing material (even with the inherent copying and caching in transmission) is not breaching copyright.
But this has implications for section 97A orders, surely. These orders are based on 97A(1): "The High Court (in Scotland, the Court of Session) shall have 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."
But in this case the is no person "using the service" to infringe copyright. The user of the ISP's service is not in fact infringing because it is a streaming site.
So does that mean the section 97A orders are not in fact valid against streaming sites?
The wording of 97A makes sense, as if the customers of the ISP are not infringing copyright, why would the ISP be burdened with court orders. Ideally the copyright holders should take action against the site itself that is almost certainly breaching copyright by "broadcasting" or "distributing" content without the licence. Of course, if, in the country in which the server is hosted, such actions are not a breach (e.g. because for personal use) it could be that there is no copyright breach at all, but certainly there is no infringing by the users of the ISPs service. So 97A should not apply.
I am not a lawyer, but that is how it seems to me. Comments?
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