Commentary on Sections Topic 2: Online infringement of copyright Section 17: Power to make provision about injunctions preventing access to locations on the internet
80.Section 17 provides a power for the Secretary of State to bring forward regulations about the granting by courts of injunctions requiring service providers to block access to sites, for the purpose of preventing online infringement of copyright. “Service provider” has the same meaning as in section 97A of the Copyright, Designs and Patents Act 1988 (“the 1988 Act”). A service provider is anyone providing an information society service. An information society service is broadly defined as any service normally provided for remuneration at a distance by means of electronic equipment for the processing (including digital compression) and storage of data and at the request of a recipient of the service (see section 97A(3) of the 1988 Act and regulation 2 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002/2013)). Examples of these include internet service providers, and providers of websites, such as internet storage facilities.
81.Before making such regulations the Secretary of State must be satisfied that online copyright infringement is having a serious adverse effect on businesses or consumers and that making regulations would be a proportionate way to address that effect (see subsection (3)). The Secretary of State may not make regulations if to do so would prejudice national security or the detection or prevention of crime.
82.The regulations have to provide that a court may only grant an injunction if the internet location is, or is likely to be, used to host or access a substantial amount of material in infringement of copyright.
83.The regulations have to provide that a court should take into account the extent to which the operator of the site and the service provider have taken steps to prevent infringement of copyright in the material. The regulations must require the court to consider the extent to which the copyright owner had made efforts to facilitate legal access to content. They must also require the court to consider the effect on legitimate uses or users of the online location and the importance of freedom of expression.
84.The regulations must require the court to take into account any representations by a Minister of the Crown.
85.The regulations must require the service provider and operators of the location in question to be given notice of an application for an injunction. They may also provide that a court should not make a cost order against a service provider.
86.The regulations must be made by statutory instrument in accordance with the procedure in sections 17(11) and 18. The instrument must be approved by both Houses of Parliament.