Dramatico Entertainment Ltd & Ors v British Sky Broadcasting Ltd & Ors

Users of a peer-to-peer file-sharing service infringe copyright when they download protected works and make them available for uploading to other users. Such making available is communication to the public under section 20 of the Copyright, Designs and Patents Act 1988, including for sound recordings.

Operators may be liable for authorising those infringements where they provide the means of infringement through an organised, actively promoted service, retain control over the relevant material, know that infringement is occurring and take no steps to prevent it. The same facts may establish joint tortfeasance where the operators induce or persuade users to infringe and act pursuant to a common design.

Record companies sought injunctions under section 97A of the Copyright, Designs and Patents Act 1988 requiring six major internet service providers to block or impede access to The Pirate Bay, a widely used BitTorrent website.

By consent, the court determined preliminary issues concerning whether UK users and the operators of The Pirate Bay infringed the claimants’ copyrights. Neither the operators nor any users were joined or represented. The central issues were whether users copied and communicated sound recordings to the public, and whether the operators authorised or became jointly liable for those infringements.

1. Jurisdiction and absence of third parties. It was unnecessary to join or serve the operators or users. Article 8(3) of the Information Society Directive and section 97A of the Copyright, Designs and Patents Act 1988 confer jurisdiction to grant relief against intermediaries whose services are used for infringement. Joinder would also be impracticable and disproportionate.
2. Users’ copying. A user who selects a torrent file and downloads the associated content files reproduces the relevant content on the user’s computer. UK users had therefore infringed the claimants’ sound-recording copyrights on a large scale under section 17 of the Copyright, Designs and Patents Act 1988.
3. Communication to the public. Applying the CJEU authorities, including SGAE v Rafael Hoteles SA [2006] ECR I-11519, Football Association Premier League Ltd v QC Leisure [2011] ECR I-0000 and Airfield NV v SABAM [2011] ECR I-0000, users who uploaded sound recordings to the BitTorrent swarm made them available by electronic transmission to a new public. They consequently communicated the recordings to the public under section 20(2)(b).
4. Authorisation. The factors identified in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) were applied. The Pirate Bay provided an organised and user-friendly service, actively facilitated searching and downloading, supplied the means necessary for infringement, was operated with the objective and intention of enabling infringement, retained the ability to remove torrents, and took no effective preventive steps. The operators went beyond mere enablement or assistance and authorised the infringements.
5. Joint tortfeasance. The same matters established that the operators induced, incited or persuaded users to infringe and that both operators and users acted pursuant to a common design. The operators were therefore jointly liable for users’ infringements.
6. Disposition. Both UK users and the operators of The Pirate Bay were found to infringe the claimants’ copyrights in the United Kingdom.