Summary

The downloading and uploading of music industry sound recordings by the operators and users of a peer-to-peer file-sharing website infringed the copyrights of record companies in the United Kingdom.

Facts

The court was required to determine preliminary issues in relation to the alleged infringement of sound recordings copyright of the claimant record companies (C) by the defendant internet service providers (D).

C represented the members of British Recorded Music Industry Ltd (BPI) and Phonographic Performance Ltd (PPL) which held the UK rights for approximately 99.8 per cent of all sound recordings sold legally in the UK. D had a market share of 94 per cent of United Kingdom internet users. C had applied for an injunction against D under the Copyright, Designs and Patents Act 1988 s.97A. C sought an order requiring D to block or at least impede their customers' access to a peer-to-peer file-sharing website (T). C claimed that no BPI or PPL members had granted a licence to T. Copyright in respect of sample music albums were relied on for the purposes of the instant proceedings and C adduced evidence from a company (M) specialising in evidence gathering on the internet. The operators of T had not been joined as defendants to C's claim. The preliminary issues to be determined were whether the users and operators of T had infringed C's copyrights in the UK.

C contended that T's UK users had infringed copyright under s.17 and s.20of the 1988 Act by copying and communicating sound recordings to the public and that T's operators were jointly liable as they had authorised the infringement by users.

Held

(1) A user of T who selected a file to obtain a copy of particular content and then downloaded the associated content files, copied the content contained in those files on to their computer. It followed that if the content files comprised a copyright work and the user did not have licence from the copyright owner, they would be infringing copyright. The evidence from M was that files for all the sample recordings were available for download on T and at least 15 per cent of each album was being shared by a user via an account held by D, and at least one per cent of each album had been downloaded from each user account. Therefore, UK users of T who had accounts with D had been engaged in sharing and thereby making unlicensed copies of the sample recordings. More generally, M had monitored the activities of peer-to-peer users in the UK and had identified over three million instances where D's services had been used for the illegal downloading of works of the BPI's members. As T was the most popular site, it could be inferred that a substantial proportion had involved use of T. The conclusion therefore was that UK users of T had infringed, and were continuing to infringe, C's copyrights by copying C's sound recordings on a large scale (see paras 40-43 of judgment). (2) T's UK users had also infringed C's copyrights by communicating the recordings to the public. C's focus was on users who allowed copies of sound recordings on their computers to be uploaded. As it was clear from the evidence that UK users were involved as both uploaders and downloaders, it was immaterial whether the act of communication to the public was committed at the place of origination or the place of reception. The issue of whether such users thereby communicated such recordings to the public involved two questions. Firstly, whether they communicated the recordings by electronic transmission and, secondly, whether they communicated the recordings to a new public, namely a public which had not been taken into account by the rights holders when authorising distribution. Users made the recordings available by electronic transmission in such a way that the public could access from a place and at a time chosen by them within s.20(2)(b). They also communicated the recordings to a new public, as copies of the recordings were made available to users who had not purchased them from an authorised source, Sociedad General de Autores y Editores de Espana (SGAE) v Rafael Hoteles SL (C-306/05) [2007] Bus. L.R. 521, Football Association Premier League Ltd v QC Leisure (C-403/08) [2012] 1 C.M.L.R. 29 and Airfield NV v Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (Sabam) (C-431/09) [2012] E.C.D.R. 3 applied (paras 61-73). (3) T's operators did authorise its users' infringing acts of copying and communication to the public, Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch), [2010] E.C.C. 13 applied. They went far beyond merely enabling or assisting. On any view, they "sanction, approve and countenance" the copyright infringements committed by its users, but they also purported to grant users the right to do the acts complained of. It was no defence that they openly defied the rights of the copyright owners (paras 73-81). (4) T's operators had also induced, incited or persuaded its users to commit copyright infringements, and had acted with T's users pursuant to a common design to infringe. It was also relevant that the operators profited from their activities. They were therefore jointly liable for the infringements committed by users, Newzbin applied (paras 82-83).

Preliminary issues determined