In the recent High Court decision in Dramatico Entertainment Limited v British Sky Broadcasting et al  EWHC 268 (CH) (“Dramatico”) record companies achieved a major victory against the six largest internet service providers in the UK in their ongoing fight against online piracy and abuses of content.
Mr Justice Arnold ruled that both users and operators of the peer-to-peer file sharing website, The Pirate Bay (“TPB”), had infringed the claimant record companies’ copyrights under section 17 of the Copyright, Designs and Patents Act 1988 (“CDPA”) by copying their sound recordings on a large scale. The Court also ruled that the Pirate Bay had breached the Claimant record companies’ right of communication to the public under section 20 CDPA.
The Pirate Bay is a Swedish file sharing website which allows users to share electronic files, including multimedia, computer games and software, via BitTorrent. Its key feature is that it enables an individual to download files quickly by allowing people downloading the file to upload parts of it at the same time. In December 2011 TPB had over 30 million registered users worldwide.
Several record companies, the BPI (British Recorded Music Industry Limited) and PPL (Phonographic Performance Limited) applied to the High Court for an order for internet service providers (ISP’s) to block access to TPB. The application was issued pursuant to section 97A CDPA which provides that an injunction may be obtained against an ISP that has “actual knowledge” of another person using their service to infringe copyright.
While the grant of the injunction remains to be determined the court has considered two preliminary issues:
Whether on the evidence before the court 1) users and 2) operators of TPB infringed the claimants’ copyright in the UK.
The Claimants argued that TPB users infringed their copyrights in the UK by -
- Copying sound recordings, in breach of section 17 CDPA and;
- Communicating sound recordings to the public, in breach of section 20 CDPA.
They further argued that TPB operators infringed copyright on the basis that they
- Had committed the tort of authorising infringements by the UK users and;
- Were jointly liable for the infringements by the UK users.
A further issue arose as to whether it was appropriate for the court to decide the preliminary issues in the absence of the operators of TPB, since they had not appeared, been joined as parties or been served with the claim.
As stated above, the Judge held that both users and operators of TPB infringed the copyrights of the Claimants in the UK under the European Union’s Copyright Directive and the CDPA.
Infringement by copying
When a user of TPB website selects a torrent file in order to obtain a copy of some content and then downloads these sound recording content files and proceeds to copy theses content files onto their own computer, this constitutes copyright infringement if the content itself comprises a copyrighted sound recording.
It was not therefore difficult for the court to conclude that the users are copying copyrighted content. The Judge held that “UK users of TPB who have accounts with the Defendants have infringed and are continuing to infringe, the Claimants’ copyrights by copying the Claimants’ sound recordings on a large scale”.
Infringement by communication to the public
In deciding whether the recordings had been communicated to the public, it was necessary to decide (i) whether the recordings had been communicated by electronic transmission and (ii) whether the recordings had been communicated to a ‘new public’, as in a public which had not been taken into account by the right holders when authorising the distribution of the recordings.
The Judge found that the concept of communication must be construed broadly in following with the judgment of the CJEU in Football Association v QC Leisure & Ors.  EWHC 1411 (Ch).
The Court determined that the defendants had made the recordings available by electronic transmission in such a way that members of the public could access the recordings from a place and time chosen by them within the meaning of section 20(2)(b) CDPA. Further, since copies of the sound recordings had been made available to users who had not purchased them from an authorised source, the recordings had been communicated to a ‘new public’.
The Judge considered the law as set out by Kitchin J in Twentieth Century Fox Film Corporation & Anor. v Newzbin  EWHC 608 (CH). He concluded that the operators of TPB authorise infringements of copyright by its users and that the operators go far beyond merely enabling or assisting users.
The mere assistance or facilitation of a primary infringement would not have been sufficient to prove the existence of joint tortfeasance. The joint tortfeasor had to have involved himself in the tort so as to make it his own. That would be the case if he had induced, incited of persuaded the primary infringer to engage in the infringing act, or if there was a common design or concerted action or agreement on a common action to secure doing the infringing act.
On the evidence, the Court determined that the operators of TPB had induced, incited or persuaded the users of TPB to commit infringements of copyright, and they and the users had acted pursuant to a common design to infringe. It was also relevant that the operators had profited by their activities. The operators were therefore jointly liable for the infringements committed by the users.
Non – Addition of Owners
In relation to the issue of non-addition of owners of TPB as parties to the claim the Court determined that it was established law that that there was no jurisdictional requirement to join them. The Court further considered that the case law in both the UK and other member States of the European Union supported the view that it was not necessary to serve or join the third party in similar actions. The Court also opined that the owners of TPB had proved very difficult to locate following their departure from the Swedish jurisdiction (which they had left after being convicted of criminal offences for aiding and abetting copyright infringement in the Swedish Courts in 2009). As such, there was no reason to believe that the English courts would have any more success in locating them than the Swedish Courts had done, and it would be impracticable or at least disproportionate, to join them as parties. Even if proceedings could be validly served there was no reason to believe that the owners would defend or make representations to the Court.
Whether the Court sees fit to grant an injunction against all of the Defendants under Section 97A CDPA will now be dealt with at a hearing in June later in the year.
The decision in the Dramatico case confirms that rightsholders seeking site-blocking injunctions against intermediaries such as ISP’s neither need to serve proceedings upon the operators or users of the infringing website in question nor do they need to join them to the proceedings.
This decision follows several high profile cases over the past 18 months concerning what, if any, responsibility ISP’s should bear when their end users carry out infringing acts online. Post Dramatico it is increasingly clear that ISP’s will no longer be able to avoid being held responsible for copyright infringement by its users and must actually take a more active role in its prevention.