Is a solicitor under a duty to warn their client of risks falling outside their retainer?
Anthony Joshua not only successfully defended his WBA, IBF, IBO and WBO titles when finishing off his Russian opponent Alexander Povetkin in the 7th round in the Wembley Stadium boxing ring on Saturday night but he also was a winner in the more rarefied surroundings of the Business and Property Court (Intellectual Property List Chancery Division) of the High Court of Justice just 2 days before.
In (1) Matchroom Boxing Ltd (2) Matchroom Sport Ltd (together “Matchroom”) v British Telecommunications plc and 5 others( 2018) Mr Justice Arnold once again proved himself to be the champion of sports media rights holders when he granted a blocking injunction in favour of Anthony Joshua's promoters, Matchroom requiring the six main retail Internet service providers ("ISPs") in the United Kingdom (BT, EE, Plusnet, Sky,Talktalk and Virgin) to block customer access to streaming servers that had infringed Matchrooms’ copyright in the broadcast and filming of professional fights previously promoted by Matchroom and that were likely to do so again on Saturday night for the Joshua fight.
Mr Justice Arnold once again identified the growing problem of live sports events being streamed to customers of the ISPs through streaming servers, thus depriving rights holders such as Matchroom and broadcasters such as Sky of substantial revenue. Consumers have increasingly turned to set-top boxes, media players and mobile device apps to access infringing streams rather than ( as previously) web browsers running on computers “in the mistaken belief that it is lawful to access unauthorised streams using such devices and software”.
In an unopposed application, Mr Justice Arnold made permanent blocking orders against the ISPs requiring that Matchroom in future provide not less than four weeks’ notice in advance of events that they were promoting and would be broadcast and requiring that the ISPs utilise available advanced technology to identify infringing streams in real time during the sports event, thus allowing the ISPs to block and unblock IP addresses, in some cases automatically.
The case is another in a series of judgements made by Mr Justice Arnold providing for blocking orders to prevent infringement of copyright in leading sports events and in favour of owners of intellectual property rights generally. In Football Association Premier League Ltd V British Sky Broadcasting Ltd (2013) Mr Justice Arnold made a blocking order in respect of a website known as FirstRow Sports which was providing web access to live streams of football matches for free in infringement of the FA Premier League’s copyright. See further Football Association Premier League Limited (2013) v British Sky Broadcasting Ltd and Cartier International AG v British Sky Broadcasting ( 2014) ( recently considered in the Supreme Court on the question of costs of implementation by the ISP’s of the blocking orders).
The blocking orders are made under Section 37 (1) of the Senior Courts Act 1981 and section 97A of the Copyright, Designs and Patent Act 1988, which implements Article 8 (3) of the European Information Society Directive 2001 and , among other things , has the effect of requiring ISPs to take measures to block or at least impede access by customers to websites and live streams infringing copyright and other related rights.
In a detailed judgement in The Football Association Premier League Ltd v British Telecommunications Plc and 5 others (2017) Mr Justice Arnold referenced his earlier 2013 FirstRow Sports judgment but pointed out that the blocking orders sought in this case were directed at streaming servers rather than a website. The application for blocking orders was supported by all the principal Football Associations including those of Scotland, Germany and Spain, together with the England and Wales Cricket board, the PGA European tour, the Rugby Football Union and the Darts Professional Corporation all of which had suffered significant infringement of their copyright in their sports rights and events. The application was also supported by most of the ISPs and none opposed it. Blocking Orders were made requiring the defendants is take measures to block, or at least impede, access by their customers to streaming servers which deliver infringing live streams of Premier League, footage to UK consumers.
Adopting the considerations required to make a blocking order required , Mr Justice Arnold in the Matchroom case considered that the blocking order was proportionate. It does not impair the rights of the defendants to carry on business. To the limited extent that it interferes with the rights of Internet users to import or receive information, the interference (was) justified by a legitimate aim, namely preventing infringement of Matchroom's and Sky’s right on a large-scale and it was proportionate that aim. He considered that it would be effective and dissuasive, that no equally effective but less onerous measures are available to Matchroom and that the blocking order avoids creating barriers to legitimate trade and it is not unduly complicated or costly and it contains safeguards against misuse.
The learned judge recognises that the problem of infringing live streaming will not go away . Anthony Joshua looks forward to unifying all heavyweight titles, including Deontay Wilder's WBC title, while Mr Justice Arnold will no doubt continue to dominate the intellectual property court "division" in protecting valuable intellectual property rights.
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