[Guest post] When creative collaboration goes wrong

The 1709 Blog is happy to host the following contribution by Hugo Cox (Hamlins), concerning the recent joint authorship decision of the Court of Appeal of England and Wales in Kogan v Martin [see also IPKat here].

Here's what Hugo writes:

When creative collaboration goes wrong

One of the most distinctively European contributions of European law to UK copyright law has been its test for originality (being one of the requirements for copyright protection). Previously UK courts had looked for the prosaic inputs of labour, skill or judgment. Now they ask whether the work is the author’s ‘intellectual creation’, looking to see if it reflects the author’s personality, expressing free and creative choices – there must be a certain … je ne sais quoi, you might say.

There is some doubt as to whether this new test has made much difference in deciding which works do or do not acquire copyright protection. However, in the law of joint authorship, a change seems unmistakable. In the past, English courts have required a contributor to input significant skill and labour to earn the title and rights of a joint author. So, for example, an attractive 16-bar saxophone solo did not meet the threshold. Now the Court of Appeal has affirmed the ‘relatively undemanding’ requirement is, once again, to contribute elements which express the contributor’s own intellectual creation. We know from the CJEU’s Infopaq judgment that this can be achieved in just eleven words.

Kogan v Martin

This conclusion of the Court of Appeal was arrived at in its judgment of 9 October in Kogan v Martin, a case concerning the screenplay for Florence Foster Jenkins, a film which starred Meryl Streep and Hugh Grant. The question was whether it had been written solely by Nicholas Martin, as had been decided in the Intellectual Property Enterprise Court in 2017, or whether Julia Kogan was joint author. The Court of Appeal was not content with the reasoning of the lower court and ordered a retrial.

It seemed Martin had held the pen and Kogan had contributed only to the first drafts. However, the Court emphasized a joint author can be someone who only offers suggestions to the writer  – she does not necessarily have to put pen to paper or have the last word on what goes into the script. Contributions to plot ideas or inventing characters are on an equal footing with contributions to the execution of a work. And if a work has been created through a series of drafts, inputs into the earlier drafts count.

Complex relationships, complex law

The Court set exacting standards for the assessment of the complex evidence of creative collaboration. The fact witnesses’ recollections may be imperfect does not absolve the judge of his duty to take those recollections into account alongside any documentary evidence and to come to a conclusion about the nature of the interaction between the parties and their contributions. Were Julia Kogan’s contributions akin to those of a researcher, or was there a joint creative process? The assessment is highly fact-specific and difficult, but must be undertaken.

Though it seems the quantitative threshold for joint authorship has been lowered, the overall assessment of the evidence has become ever more complex, subtle and exacting. And the legal concepts are slippery. Joint authors must be engaging in a ‘common design’ – according to the Court of Appeal this is not something Ezra Pound was doing when he made extensive revisions to Eliot’s The Waste Land. The Court explained, perhaps less than helpfully: ‘he was acting as a friend and critic and not a collaborator in a common design’. And appealing though the European ‘intellectual creation’ test is, can you necessarily spot someone’s personality in their output and when exactly are choices free and creative?

We live in a time when creative collaboration is widespread – from pop bands to sitcom writers’ rooms to the interactive world of the internet. It’s a complex picture, and one which the law should try to avoid complicating further.

Custodial sentence appropriate for sustained online infringement

In an interesting decision, the Court of Appeal in London has upheld a custodial sentence imposed on Wayne Evans by HHJ Trevor Jones at the Crown Court in Liverpool for two offences of distributing an article infringing copyright contrary to section 107(1)(e) of the Copyright Designs & Patents Act 1988 and also to a further offence of possessing an article for use in fraud contrary to section 6(1) of the Fraud Act 2006.

Evans operated a number of websites which were responsible for the illegal distribution of licensed and copyrighted material. He did not himself have the material on his own websites, but he facilitated internet users by operating websites which permitted them to go elsewhere in order to find digital material via what are called "torrent" websites which permitted such downloading. The appellant himself had three websites which he administered. They were hosted through a proxy server, a computer system or application which facilitated access to material on the internet and which also provided a degree of anonymity to those who were supplying or accessing it and which bypassed other sites which might have been blocked by UK internet service providers. The three website also shared an internet protocol address. They were set up using the same email account registered to the appellant. He had no licence or permission for his activities from the UK's performing right and mechanical copyright organisation PRS for Music.

Evans (39) had no previous convictions of any kind. He pleaded guilty, at what was accepted to be the first practical moment. But the court imposed a twelve month custodial sentence on the first count: on the second count he was sentenced to 6 months' imprisonment. On the third count, the count of possessing an article for use in fraud, he was sentenced to 10 months' imprisonment. All sentences were stated to run concurrently. Consequently the total sentence was one of 12 months' immediate imprisonment. 

The Court of Appeal noted that there was no Definitive Guideline issued by the Sentencing Council in respect of offences contrary to section 107 of the CDPA 1988 However, the Definitive Guideline issued by the Sentencing Council with regard to fraud, bribery and money laundering offences did apply to count 3 on this particular indictment: that is to say, possessing an article for use in fraud. By reference to that Guideline, it was common ground before the judge on this count that this was a case of high culpability and greater harm and that the relevant starting point was one of 18 months' custody for such an offence: with a category range of 36 weeks' custody to 3 years' custody.

But nevertheless, Evans appealed the sentence and argued that  a total sentence of 12 months imprisonment was excessive in the circumstances of this particular case. In particular, it was said that such a sentence failed sufficiently to acknowledge that the appellant was not motivated by financial gain and scarcely did gain. It is said also that he had mental health issues and related personal mitigation. He was of previous good character and was most unlikely to re-offend. In that regard, emphasis was put on the pre-sentence report which contained views precisely to that effect and also explained the difficult personal background of the appellant. The appellant argued that whilst this offending did cross the custody threshold, the resulting sentence could and should have been suspended and, further or alternatively, could and should have been a shorter sentence in terms of length.

But the Court upheld the original sentence, placing weight on the deterrent effect of the sentence despite the fact there was no evidence to suggest that the appellant had made any significant sums of money out of these activities, on the loss suffered by the music industry (although the loss estimated by PRS for Music was considered 'notional'), and the sustained nature of the offending, which continued even after Evans had received cease and desist notices (which Evans ignored) with Lord Justice Davis saying:

The appellant may not have been motivated by gain for himself. But there was undoubtedly a real loss to the owners of the relevant copyrights and related performers. Further, quite apart from such loss as could be identified and quantified, such offending always has a wider detrimental impact on the music industry and its profitability: and the music industry is an important economic contributor to society. That detriment is none the less real for being difficult to quantify. As has, in fact, long been established in the context of intellectual property offending, an element of deterrent sentencing is justified in this context; not least also because of the difficulty in tracking down and investigating such offending. Most certainly here the appellant had strong personal mitigation. But his conduct was sustained and he persisted in it even after receiving the cease and desist notices. He carried on his activities for a lengthy period of time and he used sophisticated equipment for the purpose.

http://www.bailii.org/ew/cases/EWCA/Crim/2017/139.html

Publish and Be Damned

On two recent occasions I have been stunned by the ignorance of some BBC journalists about the law of copyright with regard to using other people's photographs without permission. Perhaps I shouldn't be. Even a leading guide on legal matters for journalists, McNae's Essential Law for Journalists, devotes several paragraphs to the public interest and ethical considerations of taking and using pictures from social media sites belonging to people who inadvertently find themselves in the news spotlight, but can only manage a single sentence elsewhere in the book to highlight the fact that using photographs is excluded from the fair dealing exception for news reporting, as shown in section 30(2) CDPA.

Clearly the majority of average users of social media will not think twice about the copyright implications of re-tweeting or otherwise re-publishing other people's comments or photographs, and in the main this is probably something which can be tolerated when no-one is being deprived of any actual financial benefit which might otherwise be due to them as authors. But this situation changes once the professional media become involved. Arguably this is where the Berne three step test becomes engaged. 

Too often the large news organisations rely on the ignorance of ordinary members of the public about their rights. By way of contrast however, try re-publishing anything substantial (say more than 11 words) from a news website without a licence and you can expect a bill from the Newspaper Licensing Agency. If nothing else, the Leveson Inquiry has taught us that many journalists operate to different ethical standards, and are not immune from gross hypocrisy. And it's not as if there isn't plenty of caselaw on the subject. The cases of Painer and Daniel Morel come to mind.

So what of the two stories which have prompted this article? The first concerns that dress which some people perceived as white and gold while others saw as black and blue. The background to the story, for those unfamiliar with it, can be found here on the BBC News website. My particular complaint lies in a Radio4 programme made by the BBC's Mukul Devichand (available here on iplayer for anyone located in the UK) in which he specifically defended his publication of the picture by reference to the fair dealing exception for news reporting, which of course does not apply to photographs. The authors of the original photograph have now engaged a solicitor to try and get recompense from those dozens of news outlets which have exploited this famous image for free.

The second instance involves another BBC journalist, Roland Hughes, and his story about his part in helping another 'lifted' photograph to go viral without the author's permission. You can read the story here, but while the photographer's moral right to be credited gets a mention, don't expect to see anything about infringement of copyright.

These are just two fairly recent examples of the particular problem faced by photographers, both amateur and professional. While the music and film industries have the resources to go after the infringers of their products, and get the offending websites blocked, individual photographers can face enormous difficulties in extracting fees from large news organisations who should know better, when they engage in similar piracy. Here's one example of the press's publish-and-take-the-consequences attitude. In addition to claiming that time pressures prevented the picture desk from getting permission, I have come across another national newspaper company whose picture desk defiantly refused to pay for using pictures it had taken from an urbex website, claiming that that they were allowed to do this by virtue section 30(1) because they were criticising the activities of Urbex explorers, notwithstanding the fact that s 30(1) only permits criticism of a copyright work, not an activity or the behaviour of the author. Their second line of ‘defence’ was that since the person who took the photographs must have been trespassing at the time he took them, this voided any copyright in the photographs. On another occasion, the Daily Mail hilariously accredited the 'Internet' as the copyright owner of a picture they had used without permission.

Having established that section 30(2) does not provide an exception for photographs to be used in connection with news reporting, and that section 30(1) will rarely justify using an image unless the purpose is just to criticise it, can there ever be a defence to using an image found on the internet, without permission? When it comes to text, the new exception (subsection 1ZA) added to section 30 for quotation would certainly seem to strengthen the hand of those who re-tweet comments, although invariably this 'defence' would fail because the original source has not been credited. But it is far from clear whether the quotation exception could apply to a photograph which was used other than in connection with news reporting; if it could, then where does that leave s30(2)? I suggest that quoting a photograph (or indeed any artistic work) might be possible for the purposes of something akin to criticism or review, but it will continue to remain outside the fair dealing rules for news reporting.

Then there is the reliance on a purported licence, such as creative commons, which may accompany an image found on, say, Flickr. Since copyright infringement is a matter of strict liability, a newspaper or other publisher would be unable to use as its defence the honest belief that the image had been made available under an open licence when in fact it had not, irrespective of the grounds for holding this view. And of course there’s the ultimate in ignorance of the law, believing that because something is placed on the internet, it is “in the public domain” and thus free for anyone to re-use, as advanced by the Irish Mail on Sunday.

“The photograph of Mrs Schregardus which we published to accompany this article came from Page 36 of this online magazine http://issuu.com/connors-bevalot/docs/publication1_-destress. Like Mrs Schregardus’s blog, it had been put into the public domain by Mrs Schregardus herself.”

Source: http://blogs.journalism.co.uk/2010/01/28/irish-mail-on-sunday-responds-to-air-controller-bloggers-complaint/

So that just leaves the public interest defence, apparently established, but not defined, by section 171(3) CDPA.

(3) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.

I say ‘apparently’ because the courts are not so sure that this establishes a defence at all. But first we need to find out what ‘public interest’ may mean in relation to copyright infringement.

It is significant that while there is quite a bit of caselaw on the subject of a public interest defence for copyright infringement, much is very old, but it generally falls into two separate groupings. Professor William Cornish put it quite elegantly when he said there are two kinds of policy grounds: those involving "the policy against legal protection" for instance because the copyright work itself is obscene, immoral or deceptive, and the "policy favouring dissemination" such as bringing a disreputable matter, for which the work is evidence, to public attention.

We need not dwell on it here, but the whole matter is made more complicated by a debate about whether s 171(3) complies with the Infosoc Directive, specifically Article 5(3)(e):

"Members States may provide for exceptions or limitations to the rights provide for in Articles 2 and 3 in the following cases: [...] use for the purpose of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings."

and the waters are muddied still further by the suggestion that both the InfoSoc Directive and the CDPA might be trumped by Article 10 (the right to freedom of expression) of the European Convention on Human Rights. Fortunately this particular matter has been considered and largely rejected by the UK courts (see Ashdown v Telegraph Group Ltd [2001] EWHC/Ch/25 )

As mentioned, there is quite a bit of case law on the public interest issue, and those interested in it may find it helpful to read a summary by Jacob J (as he then was) in his first instance hearing of Hyde Park Residence Ltd v Yelland case (see paras [24-34]). I will return to this case in a moment and look at how the Court of Appeal dealt with the issue, but first I want to look at a few examples of what Prof Cornish calls the policy against protection, that is to say, declining to enforce copyright where the work itself is disreputable. The first case is Glyn v Weston Feature Films Ltd which concerned public morality as the work was largely about an adulterous affair. For those who would like to read an in-depth analysis of the case, I can recommend an article in the European Intellectual Property Review written by someone called Jeremy Phillips (who ever he is). The next case I want to consider is Lion Laboratories v Evans, where the defendant published a report belonging to the claimant which showed that the public and the courts were being deceived about the accuracy of an intoximeter device made by the claimants. The case also involved breach of confidence, but on appeal the court held that it should not enforce copyright in this instance because to do so would deny members of the public who might have been convicted on the strength of faulty readings given by the intoximeter, the opportunity to challenge their convictions. The last case in this category I want to look at is the Spycatcher trial (HM Attorney General v Guardian Newspapers). The matter went all the way to the House of Lords and was about whether the injunction preventing publication in the UK of Peter Wright’s book Spycatcher should be lifted. By way of background, the book had been written in contravention of the duty of confidence owed by Peter Wright to his previous employers, the Crown, and the Law Lords held that the copyright in the book should not be enforced, since to do so would be to condone the breaking of the Official Secrets Act. 

Aside from these sorts of case where the claimant's own misbehaviour results in the public interest being used to decline to enforce copyright, the only significant pre-CDPA case involving the public interest of 'policy favouring dissemination' was Beloff v Pressdram Ltd [1973] FSR 33. It needs to be borne in mind that this case was tried under the 1956 Copyright Act which did not contain a reference to the public interest. In this case Nora Beloff, a political columnist on the Observer, sued Private Eye magazine for infringing copyright by publishing a private internal memo she had written to other members of the Observer's staff, about various manoeuvrings within the then Conservative government. The case failed, not least because Ms Beloff did not have standing to bring the claim as she was not the owner of the copyright, which vested in her employer. Notwithstanding this finding the court went on to say that the public interest defence advanced by Private Eye also failed, albeit the judge's remarks were deemed to be obiter and have since been criticised.

So now it is time to return to the Hyde Park Residence case. This and the Ashdown case, also mentioned earlier, are the only significant cases in recent times to look at the public interest where the policy issue was one favouring dissemination. Readers may recall that this case was about the publication in the Sun newspaper of still images taken from CCTV installed at Mohamed Al Fayed's Paris residence known as Villa Windsor, several months after the death of Princess Diana in August 1997. It is worth pointing out that at first instance the court was dealing with an application to dismiss the claim against the Sun and was not a trial on the actual issue of copyright infringement. Jacob J found that the Sun did have reasonable chance of success with its defence based on fair dealing (section 30(1)) and public interest. This decision went to the Court of Appeal where, in theory, they were only looking at the judge's application of the law in arriving at his conclusions, and they also were not addressing the underlying infringement claim itself. Nonetheless, Mance and Aldous LJJ (with whom Stuart-Smith LJ agreed) made some significant negative remarks about, inter alia, the public interest defence. The CA also looked at the Section 30(2) defence put forward by the Sun but that is not relevant here. The gist of the case was that some months after the fatal crash, Mr Al Fayed senior arranged to have published a book entitled Death of a Princess containing his version of events, which it was alleged, grossly falsified significant facts including what had happened at Villa Windsor in the hours before the death of Princess Diana and Dodi Fayed. The Sun's case was that it was necessary to publish the still images to establish the truth about the timings of the couple's arrival and departure from the Villa, which showed Mr Al Fayed’s assertions to be false, and this then undermined many of his other fanciful claims in the book. Hyde Park Residence Ltd (representing, in effect Mr Al Fayed) countered that the Sun's sole purpose in its articles was to attack Mr Al Fayed personally, and this was in no way justified in the public interest. In the event the Court of Appeal unanimously allowed the appeal and rejected the Sun’s fair dealing and the public interest defences. The matter of infringement of copyright never went to full trial.

And so as things stand today, it is fair to say, the courts do not think much of the public interest defence when it comes to matters which may interest the public, but which involve little or no public policy. However I doubt that it will stop people's Facebook and Twitter accounts from continuing to be raided for the amusement and titillation of the newspaper-buying public.

The Digital Economy Act is in line with EU law, says the Court of Appeal

It's not always easy to understand
how "digital economy" works

Yesterday the Court of Appeal for England and Wales published its 115-paragraph decision in judicial review proceedings concerning -- inter alia -- the compatibility of the online infringement of copyright provisions of the UK's controversial Digital Economy Act 2010 ("DEA") with a number of EU directives (earlier posts on this story here and here).

Background

Telecom companies and ISPs BT and TalkTalk had asked Arden, Richards and Patten LJJ to overturn the 2011 decision of Kenneth Parker J of the High Court. Their appeal was, however, unsuccessful, since Richards LJ, giving judgment for the court, found that the decision of the High Court was "extremely thorough, clear and cogent".


As is well known, the DEA had inserted new sections 124A to 124N into the Communications Act 2003 as a response to the growing problem of subscribers to internet services who were infringing copyright by uploading and accessing material online. These provisions impose "initial obligations" on ISPs to notify subscribers of copyright infringement reports received from copyright owners, and to provide copyright infringement lists to copyright owners, if an "initial obligations code" is in force. These also provide for the possible future introduction of additional "technical obligations" on ISPs, together with a "technical obligations code". 

This case was concerned, however, only with the initial obligations, the initial obligations code and the related provisions as to costs. More specifically, BT and TalkTalk had been granted permission to appeal the decision of the High Court on grounds which covered four areas:

(1) whether the contested provisions should have been notified to the EU Commission in draft pursuant to Directive 98/34 ("the Technical Standards Directive"), with the result that they are unenforceable for want of notification

(2) whether the contested provisions are incompatible with provisions of Directive 2000/31 ("the E-Ccommerce Directive").

(3) whether the contested provisions are incompatible with provisions of Directive 95/46 ("the Data Protection Directive") and/or of Directive 2002/58 ("the Privacy and Electronic Communications Directive").

(4) whether the contested provisions are incompatible with provisions of Directive 2002/20 ("the Authorisation Directive" or "the AD").

The response of the Court of Appeal

(1) the Technical Standards Directive

The broad aim of the notification requirement under Article 8(1) of the Technical Standards Directive is to enable the Commission and other Member States to comment on draft legislation and for those comments to be taken into account, as Article 8(2) requires them to be, in the subsequent preparation of the technical regulation itself. 

Richards LJ rejected this first ground of appeal, in that (paras 39 and 42)

"the key question is whether the legislation in issue [ie the DEA] has "legal effects of its own" ...: the fact that the legislation refers to further rules which have not yet been made will not prevent it from being a technical regulation if the legislation itself has legal effects. Unless it has actual legal effects, the legislation is not capable of impacting on those seeking to exercise the freedom of movement of services or other freedoms ... The judge was right to find that the contested provisions do not have the "legal effects" described by the [CJEU]'s case-law. The "initial obligations" of ISPs under sections 124A and 124B are conditional on there being a code in force under section 124C or 124D. The word "if" in section 124A(2) is important, even though the provisions contemplate that there must in due course be a code: until such time as the Code comes into being, the provisions impose no obligations on ISPs. Moreover the Code is to be made for the purpose of regulating the initial obligations, and the scope of those obligations will be dependent on the detailed content of the Code. Whilst the statute prescribes various basic features of the Code, it leaves very considerable freedom for the working out of the detail."

(2) the Ecommerce Directive

Good old times times when
service providers didn't have to worry
about the Digital Economy Act ...

The appellants had advanced a twofold case of breach of the Ecommerce Directive: (1) that the effect of the contested provisions was to render ISPs potentially "liable for the information transmitted", contrary to Article 12 of the Directive; and (2) that the contested provisions amount to restrictions on the freedom to provide information society services from other Member States, "for reasons falling within the co-ordinated field", contrary to Article 3 of the Directive. 

Richards LJ rejected this ground of appeal too, in that the High Court was right when it held that liability "for the information transmitted" as per Article 12 of the Directive is a carefully delineated and limited concept. As regards copyright material, this language broadly contemplates a scenario in which a person other than the ISP has unlawfully placed the material in the public domain or has unlawfully downloaded such material, and a question then arises whether the ISP, putatively a mere conduit for the transmission of the information, also incurs a legal liability in respect of the infringement. That liability could take the form of a fine (in criminal or regulatory proceedings) or damages or other compensation payable to the copyright owner, or some form of injunctive relief. The liability could be joint and several with the other person, or it could simply be a default liability if the other person could not be found, or was not worth pursuing, or was insolvent.

Nothing in the liabilities of ISPs under the DEA is such as to render them "liable for the information transmitted" within Article 12(1) of the Ecommerce Directive. In relation to Article 12(3) of the Directive, Kenneth Parker J was right when he found that (para 58)

"it is conceivable that the copyright owner might in certain cases be able to draw the attention of the ISP to the fact of a present infringement, or to the likelihood of a specific infringement occurring in the future, and to invite the ISP to terminate or prevent such an infringement. In these circumstances, if the ISP was liable to terminate or prevent the present or future infringement, a real question could arise as to whether the ISP was being made liable 'for the information transmitted', or was rather simply coming under an obligation to use its technical facilities to terminate or prevent an infringement, in respect of the information transmitted, committed by another person. The 'careful balance' struck by the Community legislator settles that issue, and removes all uncertainty, by allowing Member States to authorise the courts or competent administrative authority to order the ISP to terminate or prevent the infringement, so long as the ISP is not made liable (by way of fine or compensation) in respect of the infringement itself".

The High Court was right also when rejected the claim based on Article 3 of the Ecommerce Directive.

(3) the Data Protection Directive and the Privacy and Electronic Communications Directive

... or data protection issues

Article 8(2) of the Data Protection Directive, which relates to the processing of special categories of data expressly allows the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life, when this relates to exercise or defence of legal claims.

Richards LJ agreed with the conclusions of Kenneth Parker J that the processing of data by the copyright owners, ie the processing involved in their identifying apparent infringements, together with relevant IP addresses and subscriber details, for the purpose of compiling copyright infringement reports would be compatible with the Directive.

Indeed, Richards LJ found that (para 77)

"the processing [of personal data] is plainly necessary for the establishment, exercise or defence of legal claims even if the beneficial consequence of the sending of a notification by the ISP pursuant to a copyright information request will be that in the majority of cases the infringing activity ceases and no further action is required." 

Richards LJ also rejected the claim based on the Privacy and Electronic Communications Directive. The data processed pursuant to the contested provisions in the DEA are "traffic data" as defined in Article 2 of the Directive, namely "any data processed for the purpose of the conveyance of a communication on an electronic communications network or for the billing thereof". Articles 5 and 6 of the directive impose obligations on Member States in relation to such matters as the confidentiality of traffic data, subject in each case to the derogation in Article 15(1), which provides that Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Articles 5 and 6 of the Directive.To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period, also for the protection of property rights, including copyright.

(4) the Authorisation Directive

The aim of the Directive was to implement an internal market in electronic communications networks and services through the harmonisation and simplification of authorisation rules and conditions in order to facilitate their provision throughout the European Union. To this end, it provides in part for schemes of "general authorisation" which allow any person who wishes to provide electronic communications networks and services to do so in accordance with a publicly available set of conditions. Such schemes replaced individual licensing arrangements which were commonly found in national systems of regulation and which could create significant barriers to new entrants. In the UK, Ofcom has drawn up and published "General Conditions of Entitlement" in accordance with the Directive. 

The main issue under ground 4 was whether the contested provisions in the DEA are required to form part of a general authorisation and, if so, whether they impose conditions permitted within a general authorisation. The Court of Appeal rejected the claim.

A final area of complaint related to the proposed exclusion of smaller ISPs and mobile network operators from the scope of the initial obligations and the associated costs. Also this claim was rejected.

Conclusion

In dismissing the appeal, Richards LJ also refused to make a reference to the CJEU, in that, as previously stated by Kenneth Parker J, 

"the questions of European Union law raised by this judicial review admit of clear answers, and I do not believe that any useful purpose would be served by my making a reference" (para 112).

As to the costs, Richard LJ said that ISPs will have to pay 25% of the qualifying costs incurred by media regulator Ofcom in running and setting up an appeals body for alleged illicit filesharers. He also confirmed that the ISPs should pay 25% of relevant costs, which are operating fees incurred when identifying which subscribers are accused of illegal downloading. However, the Court of Appeal overturned the decision of the High Court which had said that the ISPs have to pay 25% of case fees which are charged by the proposed appeals body. Finally, the Court of Appeal ruled that BT and TalkTalk must pay 93% of the costs of the legal challenge. 

Press coverage of the decision here, here and here.