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IRIS 2012-4:1/28

United Kingdom

Operators of ‘The Pirate Bay’ Infringe Copyright

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Tony Prosser

School of Law, University of Bristol

The High Court has decided that the operators of The Pirate Bay website and its users are both guilty of infringing the copyright of rightsholders in the music industry. This means that internet service providers can now be forced to block their customers’ access to the site.

The case was brought by major record companies against the six major UK internet service providers. The Pirate Bay is a website which enables users to search for and download copyrighted material, including music and films, and the record companies sought an injunction from the court to force the service providers to block their customers from accessing the site. Under the Copyright, Designs and Patents Act 1988 (as amended to implement the EU Information Society Directive), such an injunction may be granted against an internet service provider if it has ‘actual knowledge’ that the service was being used to infringe copyright. This hearing concerned the preliminary issue of whether the users and operators of the site breached copyright.

The court decided that the users of The Pirate Bay were in breach of copyright because of the way in which they shared music files; this amounted to communicating the recordings to a new public, as required by the European Court of Justice in Case C-306/05 Sociedad General de Autores v. Editores de España (SGAE) v. Rafael Hoteles SA [2006] ECR I-11519 (see IRIS 2007-2/3). These infringements of copyright had been authorised by the operators of The Pirate Bay who were jointly liable for them; the name of the site and its funding by a Swedish anti-copyright organisation contributed to the Court’s finding that such infringement was part of the operators’ ‘objective and intention’. The case thus cleared the way for a decision at a further future hearing to grant an injunction, following the precedent of the Newzbin2 case in which such an injunction was granted to force a leading internet service provider to block access to a site infringing the copyright of six major film studios (see IRIS 2011-9/21).

Dramatico Entertainment Ltd v. British Sky Broadcasting Ltd [2012] EWHC 268 (Ch), 20 February 2012 EN