[Event Report] SIPLR Conference – IP in the Digital Environment

This Kat was lucky to attend (and be on the panel of) this year’s Stockholm IP Law Review annual conference, which invites prominent speakers in the IP field to discuss current issues of importance. This year’s topic was ‘IP in the Digital Environment (a topic that was certainly of interest to many, with over 250 attendees from all over the world!) 

With speakers including Lord Justice Arnold (Justice of Appeal in the England and Wales Court of Appeal), Judge Stefan Johansson (Judge at the Swedish Patent and Market Court), Karin Cederlund (Partner at Sandart and Partners Advokatbyrå KB), and Eleonora Rosati (Associate Professor at Stockholm University and PermaKat), this event provided fascinating insight into website blocking and what we can (hope to) look forward to in the future in this highly relevant field!

The event’s keynote speaker Lord Justice Arnold kicked things off with an overview of the different types of liability in the UK, looking also at the legislative basis for intermediary liability in the EU and the UK. Lord Justice Arnold recapped the current position in England and Wales with regards to website-blocking, noting 20th Century Fox v BT (Newzbin 2) wherein he granted the first such injunction in 2011, and the first application and injunction in relation to trade marks in Cartier v Sky. With regards to the latter case, Lord Justice Arnold examined the eight criteria set out for an injunction to be granted, looking in particular into proportionality with regards to the nature of the technical measures adopted and the various procedural safeguards to be incorporated. He also examined the question of who should pay the costs of implementing such orders, as tackled by the Supreme Court in Cartier v Sky, before moving on to look at how website blocking injunctions have been extended to non-IP cases, as in the case of Nintendo v Sky (see IPKat here). Lord Justice Arnold also addressed the topic of injunctions requiring ISPs to block streaming servers, as in the case of FAPL v BT, of course acknowledging the possibility for dynamic injunctions, and noted the latest chapter on website-blocking in the UK (as of last month) in Matchroom v BT (see IPKat here), where Mr Justice Birss agreed to a further blocking order, after a previous order had come to the end of its sunset clause (with the decision also addressing confidentiality of the terms of the order).

Lord Justice Arnold then proceeded to examine the diverse practices and outcomes around Europe with regards to website blocking injunctions, noting three different reasons for this divergence: different interpretations of Article 8(3) of the InfoSoc Directive and Article 11 of the Enforcement Directive; continuing difficulties with the communication to the public right; as well as the absence of harmonisation of accessory liability.

He concluded by illustrating the need for further harmonisation at an international level, particularly with regards to defining who an intermediary for this purpose is; underlying claims for infringement; and harmonisation on rules on accessory liability for IPR infringements.

Judge Stefan Johansson began by setting out that, unlike the UK, there have not been many website blocking cases in Sweden – in fact, there have only been 3 cases so far – proceeding to give insight as to why that has been so.

An overview was provided of the Swedish government’s initial interpretation of Article 8(3) of the InfoSoc Directive – with a particular focus on Recital 59 – and how it was not necessary to stipulate in Swedish law that an injunction be granted in all instances, culminating in Article 53b of the Swedish Act on Copyright in literary and artistic works and the Swedish Preparatory Works – which set out that injunctions may be granted against those who contribute (in a manner akin to accessory liability). It was illustrated how this has led to other sanctions being carried out, including criminal sanctions and forfeiture of domain names.

Judge Johansson then discussed Music/Movie Companies / Bredbandsbolaget, where the first claim for website blocking arose, with a conclusion being reached by the Patent and Market Court of Appeal (PMCA) in 2017 setting out that Member States are obliged to provide the possibility of injunctions in such situations, and that ‘contribution’ under Article 53b of the Swedish Act is to be interpreted in line with the EU Directives, so as to allow for such an injunction to be granted. Judge Johansson also noted that this was developed in 2019 Publishers / ISPs case and the 2020 Movie Companies / Telia case (see IPKat here).

Following on from Judge Johansson, Ms Cederlund addressed the different types of injunction raised in the latter Telia case. She noted the innovation of the Telia injunction, which sought an interim injunction (granted by the Patent and Market Court (PMC) but reversed by the PMCA), as well as a dynamic injunction (which was granted by both the PMC and PMCA). An extensive insight into the specification of the Telia injunction was provided, as well as how mechanism that the Court set out may trigger ‘additional blocking measures’, which was premised upon continuing dialogue between Telia (the ISP) and the right holders so as to comply with the injunction.

Karin concluded by noting that, whilst dynamic injunctions have been established in Sweden, it remains to be seen whether this will serve as a basis for cooperation agreements between ISPs and right holders, and establish a methodology as provided in Telia case.

Looking at intermediaries (and specifically hosting providers) Eleonora began by providing a timeline of judicial and legislative developments, from Svensson to the most recent AG Opinion in YouTube/Cyando and the even more recent (as of last week) European Commission IP Action Plan (see IPKat here) and Digital Services Act (to be released on 15 December 2020).

Eleonora illustrated the increasing tension toward the divide between harmonised direct liability and formally unharmonised accessory liability, before turning to the specific case of copyright. In this regard, Eleonora noted how intermediaries are increasingly being brought within the scope of application of liability rules by establishing direct liability under Art 3(1) of the InfoSoc Directive. Whilst the CJEU has set out criteria for the communication to the public right in case law, Eleonora noted the “regressive” view of Advocate General Saugsmandgaard Øe in YouTube/Cyando to bring the communication to the public right back to the position of the CJEU prior to Svensson.

Looking to the future, Eleonora noted a number of uncertainties that will have to be addressed, including more clear cut guidance as to what subjects fall within Article 3 of the InfoSoc Directive and whether they are directly liable or not; as well as Article 17 of the DSM Directive, the lawfulness of which has been questioned in the recent case brought by the Polish government.

Eleonora concluded that these subjects may no longer resemble the types of subjects that the legislator had in mind back when adopting the E-Commerce Directive, and it may now be time to think of these online subjects as somehow different from simple intermediaries.

SIPLR would like to say a big thank you to the speakers for their interesting insight into their topics, as well as to everyone who attended this year’s conference!