Not 'game over' yet but time running out for online pirates

Taking down online pirates who operate across borders is a vexing issue. Unlike real-life pirates flying a Jolly Roger flag, most online pirates do not usually identify themselves with the skull and crossbones sign. But they are just as agile and adept at circumventing enforcement measures as their counterparts.

In recent years, site-blocking injunctions have been used in several European countries, including Britain, to combat online piracy.

According to a recent British High Court decision, such injunctions have been "reasonably effective" in reducing access to pirate websites.

In Singapore, the Ministry of Law is now proposing to arm copyright holders with the same weapon. Under the proposed amendments to the Copyright Act announced by the ministry on April 7, rights holders will be able to apply directly to the courts for injunctions to prevent access to websites which flagrantly infringe their copyright.

It will no longer be necessary to prove that network or Internet service providers are also liable for copyright infringement. The ministry's aim is not to target search engines (such as Google) or websites based primarily on user-generated content (such as YouTube).

Instead, the intention is to outlaw online locations which "show a blatant disregard for, and that clearly infringe copyright", such as peer-to-peer file-sharing website The Pirate Bay.

Interestingly, the draft Copyright (Amendment) Bill 2014 sets out a number of factors that the High Court must consider in deciding whether an online location has been or is being used to flagrantly infringe copyright. They include:

•whether the primary purpose is to commit or facilitate copyright infringement;

•whether directories, indexes or categories of the means for copyright infringement are made available;

•whether a disregard for copyright is generally demonstrated;whether access to the online location has been disabled by court orders made in another country;

•whether guides or instructions to circumvent site-blocking court orders are available; and

•the number of visitors to the online location.

According to the ministry, these factors were drawn up based on cases in Britain which dealt with applications for site-blocking injunctions.

A review by RHTLaw Taylor Wessing of the relevant British cases also showed that the British courts took into account the presence of such conduct in granting site-blocking injunctions.

For example, in a landmark application brought by several record companies against service providers to block access to The Pirate Bay, the British High Court found that the torrent files provided on the pirate site were posted with the primary intent of facilitating copyright infringement. Indeed, they had been conveniently indexed for easy retrieval by users.

A torrent is a small file which facilitates peer-to-peer file sharing.

In addition, the offending site contained advice on how to circumvent blocking measures taken as a result of court orders. Injunctions had also been taken out against The Pirate Bay in other European countries for copyright infringement. The court concluded that The Pirate Bay was "in no sense a passive repository of torrent files".

 

But although the factors set out in the Bill appear to favour rights holders, it may be too early for them to claim victory. Stipulating the factors in the Bill may inadvertently give online pirates an opportunity to tailor the presentation of their pirate sites to delay, if not impede, enforcement measures by rights holders.

A recent decision in Britain involving a number of peer-to-peer file-sharing websites showed that online pirates can "window-dress" their sites to make them seem like "anti-piracy" sites. Rights holders may, therefore, need to make efforts to pierce the veil of deception before they can convince the judge to consider issuing a site-blocking injunction.

Moreover, the tide of site-blocking injunctions may be starting to turn. In January, a Dutch court ordered Internet service providers to unblock access to The Pirate Bay, holding that the blockade had failed to restrict copyright infringement. It remains to be seen whether the Singapore courts will prefer the non-utilitarian view endorsed by the British courts that "a blocking order may be justified even if it only prevents access by a minority of users".

On the whole, site-blocking injunctions are a welcome addition to the armoury of rights holders in Singapore. As the ministry recognised, there is no single solution to eradicating online piracy.

Other longer-term measures, such as intellectual property rights education and improving consumer access to rights holders' digital content, must work in tandem with shorter-term legal remedies.

It is, perhaps, not yet "game over" for online pirates, but time is running out for them to continue to steal the hard-earned labour of rights holders.

stopinion@sph.com.sg

The writer heads the intellectual property & technology practice at RHTLaw Taylor Wessing.

This article was published on April 16 in The Straits Times.

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