A recent case considered by the UK Intellectual Property Enterprise Court (IPEC) examined the factors to be taken into account when determining whether acts of communication to the public are targeted specifically at an individual country.
Omnibill Pty Ltd. (Omnibill), a company providing escort services in South Africa, contended that a UK company, EGPSXXX Ltd (EGPS), infringed its copyright in the UK by reproducing its images on the EGPS website. The Director of EGPS contended that the servers which hosted the EGPS website were not UK based and as there was no evidence to the contrary, the Court assumed that this was the case. The question was whether the acts of communication to the public were targeted at the public in the UK.
Targeted at UK public?
In finding for Omnibill, the IPEC held that, on the evidence, EGPS had been communicating reproductions of the claimant’s artistic works to the UK public.
The court noted that the question of whether a website is targeted at a particular country is a multi-factorial one which depends on all the circumstances, including the number of visitors that access the website from that country. Other factors the court listed as relevant included the international nature of the activity, use of a language, currency or domain name other than that generally used in the Member State where the trader is established, and any mention of international clientele composed of customers domiciled in various Member States.
In reaching its decision the court was influenced by the volume of visitor traffic to the website from which the judge inferred that a substantial proportion of visitors came from the UK (between 10 to 25% of the traffic). The judge also looked at the structure of the website, which had a global front page attracting users from many countries, which was important in terms of advertising revenue.
The judge inferred from the facts that EGPS had been set up in the UK to try to shelter liability from the South African jurisdiction. He concluded that the director of EGPS’ actions amounted to an authorisation by him personally to the website operator to carry out the infringing acts.
This case illustrates how evidence of the number of visitors to a website can, in practice, be a significant factor in determining whether national copyrights are infringed. It is encouraging for rights’ holders to note that the visitor traffic analysis of the first defendant’s website consisted of evidence from several independent websites, which the judge was prepared to take at face value.
Any similar case coming before the Irish courts is likely to be decided on similar grounds.