Polydor Ltd & Ors v Brown & Ors

Making copyright sound recordings available to members of a peer-to-peer network through a shared computer directory is an act of communicating the works to the public under sections 16(1)(d) and 20 of the Copyright, Designs and Patents Act 1988. The act is a primary infringement. Liability does not depend on the defendant knowing, or having reason to believe, that the conduct infringes copyright. The mere presence of files in a shared directory, where they are made available for access by members of the public at individually chosen times and places, is sufficient. A defendant’s lack of profit and ignorance of the legal consequences do not provide a defence.

The claimant record companies sought summary judgment against the second defendant, Mr Bowles, for infringement of copyright in sound recordings. His identity had been obtained following a Norwich Pharmacal order against internet service providers. Evidence showed that a computer connected to the internet through an account in his name, and running peer-to-peer software, made more than 400 audio files available to users of the Nutella network.

Mr Bowles admitted using peer-to-peer software but said that he was unaware that it distributed music and that his children had also used the computer. The central issues were whether making the files available constituted infringement and whether his lack of knowledge or the involvement of his children provided a defence.

1. Summary judgment granted. The court was satisfied that the evidence established copyright infringement and that the defendant had no realistic prospect of successfully defending the claim.

2. Under sections 16(1)(d) and 20 of the Copyright, Designs and Patents Act 1988, the copyright owner has the exclusive right to communicate the work, including a sound recording, to the public. This includes making the work available by electronic transmission so that members of the public may access it from a place and at a time individually chosen by them.

3. Connecting a computer to the internet while peer-to-peer software is running, with copies of copyright works placed in a shared directory, falls within that infringing act. The infringement is primary. Knowledge, intention, or reason to believe that the conduct is unlawful is unnecessary. Innocence or ignorance is no defence.

4. Mr Bowles was liable because he held the internet account, admitted using the software, controlled the computer, and had not denied installing the software. The court also found that he had authorised the infringing performance. His lack of financial benefit and his assertion that he had allowed his children to download music did not alter the conclusion, particularly as he accepted that he himself had used the software.

5. It was unnecessary to decide what liability might have arisen from use of the computer by his children. The court ordered that enforcement of payment of costs should not begin for two months and gave permission to apply concerning payment by instalments if agreement could not be reached.