UK: Copyright - Who is Liable if Material is Infringing?

Last Updated: 18 June 1996
Just as an online presence allows a business to have a dialogue with its customers and potential customers, so it allows the customers and users to have an discussion amongst themselves. In fact, it is by creating special interests groups and similar forums for its users that many online providers hope to create a lasting, and profitable, relationship with the outside world. Any bulletin board, user discussion group, or email facility allows a user, via the online presence, to store and transmit copyright material - whether text, photo, video, or music - directly or indirectly to other users. In the nature of things, some of the copyright material will be infringing.

Who is liable?

Who is liable if the material is infringing? Clearly, the user who posted the infringing material is liable, but users are likely to be untraceable or, if traceable, to have shallow pockets. For copyright owners, then, the obvious target for any legal proceedings is the online provider as playboy enterprises Inc v Frena shows.

Copyright case No 1.

Playboy Enterprises Inc v Frena, Mr Frena was the operator of a bulletin board in Florida. Unknown to him, one of his customers had scanned a number of photos from Playboy magazine, and had then posted the scanned photos on the bulletin board, where they became available for downloading by other users. This came to Playboy's attention, and Playboy sued Mr Frena for infringement of copyright in the photographs.

The American court found that Mr Frena, by distributing the photos from his bulletin board had infringed Playboy's copyright: the fact that he was unaware of the actions of his subscribers was unimportant because copyright did not require a mental element. All it required was copying or distribution.

Although this case in the United States dealt purely with bulletin boards, its reasoning was applicable to any form of online presence: it set a worrying precedent for online providers, and seemed to put them at the mercy of their most irresponsible users. Furthermore, apart from investing in an insurance policy, what was the online provider to do? Could it really be expected to monitor all the traffic on its system for copyright infringement? However, in Religious Technology Center v Netcom and others, another American case, the court took a view that was more favourable to online providers.

Copyright case no 2.

Mr Erlich was an ex-Scientologist. He took an active part in alt.religion.scientology, an Internet Usenet group devoted to Scientology issues, where he was extremely critical of the Church of Scientology: to illustrate his arguments, he posted extracts from Scientology publications onto a bulletin board. The Church of Scientology acting through Religious Technology Center sued Mr Erlich (unlike the Frena case, the person posting the material was identifiable), and the bulletin board operator for breach of copyright. The court was quick to find that Mr Erlich had infringed the Church's copyright, but in relation to the bulletin board operator it took a different view.

The bulletin board operator was able to show to the court that in any one 24 hour period, the equivalent of 36,000 pages of A4 were transmitted to and from its bulletin board, and that as a result it could not be expected to monitor the bulletin board for infringing material. The court found that bulletin board had not infringed the Church's copyright.

In many ways, the court in the Netcom case took a more sophisticated view of copyright. Although the material was stored on the bulletin board, and therefore constituted an infringing copy, was it the bulletin board operator that had made that copy? Logically, no. Furthermore, even if the bulletin board had provided the facilities by which the material was copied, had the bulletin board operator nevertheless authorised the copying? Again, probably not.

Where to draw the line?

These two cases illustrate the two extremities of the debate in relation to copyright infringement online. On the one hand, those with an online presence are (understandably) unwilling to find themselves liable for the infringing acts of users who are likely to be too many to monitor, and often impossible to trace. On the other hand, copyright owners who see their copyright works being infringed will claim, with justification, that someone must take the blame. And if not those with the online provider, then who?

This article is correct to the best of our knowledge and belief at the time of publication. It is however, written as a general guide, so it is recommended that specific professional advice is sought before any action is taken.

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