A recent U.K case dealt with some interesting issues relating to the responsibility for the operation of a website and the jurisdiction of the U.K. courts.
The Facts
The action was brought in a U.K. court for infringement of copyright subsisting in a large number of photographs. The photographs had been published and used on a website operated by the plaintiff relating to the provision of escort services. Copies of the plaintiff’s photographs were used by the defendants in advertisements which appeared on a website providing similar and competing services.
The owner of the impugned website was a U.K company which was bankrupt at the time of the trial and did not dispute the action. However, the plaintiff also asserted that the sole director and shareholder of the bankrupt company was personally liable for the infringement. The director denied personal liability and also alleged that as the reproduction of the photographs had occurred in South Africa and the servers for the website were located there, the U.K. court did not have jurisdiction.
The Jurisdiction of the U.K Court
Copyright includes the sole right in the case of a photograph to communicate the work to the public by telecommunication. A work is communicated when it is transmitted over the Internet. Since the defendant’s website appeared to be based in South Africa, the question was whether the acts of communication to the public were targeted at the public in the U.K., in which case the court would have jurisdiction.
In the U.K. similar principles are applied in cases involving copyright and trademarks. A court will look at all the evidence to determine whether a defendant’s activity was directed at the U.K.
The judge said that it was clear that the question of whether a website is targeted at a particular country is a multi-factorial one which depends on all the circumstances. Those circumstances include things which can be inferred from looking at the content on the website itself and elements arising from the inherent nature of the services offered by the website as well as the number of visitors accessing the website from the U.K. Targeting is not necessarily decided by simply looking at the website itself. Evidence that a substantial proportion of visitors to a website are U.K. based may not be determinative but it will support a conclusion that the acts of communication to the public undertaken by that website were targeted at the public in the U.K.
When the judge considered all of these matters he concluded that the website was communicating reproductions of the plaintiff’s artistic works to the public in the U.K. As a result the bankrupt company had infringed the plaintiff’s copyright.
The Director’s Personal Liability
The plaintiff alleged that the director had personally authorized the infringement or was jointly liable with the bankrupt company.
The evidence presented showed that a second individual had started working on developing a website for use in association with an escort business. The first version of the website contained copies of the plaintiff’s copyright works. The director was interested and agreed to set up a new version of the website with the second individual with the money to come from the director and the work to be done by the second individual.
Shortly after this agreement a demand letter was sent by the plaintiff’s lawyers in South Africa alleging infringement. The judge found that company and the second version of the website were set up in direct response to the demand letter. The only rational explanation for this activity was that it was an attempt by the individuals to seek to avoid liability in South Africa by moving the ownership of the website off-shore from the point of view of South Africa to the U.K.
Authorizing Infringement
Copyright infringement includes liability for authorizing, without the consent of the owner of the copyright, the exercise of any of the rights available to the copyright owner. The word “authorize” means to “sanction, approve, and countenance”. Authorization is a question of fact that depends on the circumstances of each particular case and can be inferred from acts that are less than direct and positive.
On the facts of the case the judge found that the Director was personally responsible for authorizing the infringement by the bankrupt company since his actions amounted to an authorization by him personally to carry out the infringing acts.
Joint Liability
Joint liability occurs when there was a common design or concerted action or otherwise a combination to secure the doing of infringing acts. In such cases each of the parties involved makes the acts their own and will be liable. The judge found that the director knew that the first version of the website was alleged to infringe. He agreed with the second individual to set up a new version of the website in the company’s name and that is what happened. It would be unreal to find that director was not personally liable for the infringements committed by the bankrupt company.
Comment
In Canada courts apply the real and substantial connection test in cases of this nature. While the test is somewhat different it is likely the result would be the same.
The same concepts apply in Canada for authorizing infringement and joint liability.
John McKeown
Goldman Sloan Nash & Haber LLP
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
Fax: (416) 597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.