Copyright and Authorisation

13 April 2010

When is copyright infringed and the meaning of authorised.

Copyright is infringed not only where an act restricted by the copyright in a work is done without consent, but also where a person authorises the doing of such an act; see section 16 (2) of the Copyright, Designs and Patents Act 1988 ("CDPA"), which provides:

"Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorises another to do, any of the acts restricted by the copyright."

Section 16 of the CDPA confers upon the owner of the copyright in say a film the exclusive right to do various acts including, copying. The crucial aspect in a copyright infringment case of any of the acts artistic literay etc is to do an act without permission. It was in the well known case of C.B.S Songs v Amstrad Consumer in 1988 that first dealt with the meaning of authorised and this case reached the House of Lords. In short this case concerned the possibility of the Amstrad product authorising the copying of the works.

In a recent case concerning the sharing of works the court considered authorise to mean "the right to do the act complained of. It does not extend to mere enablement, assistance or even encouragement. The grant or purported grant to do the relevant act may be express or implied from all the relevant circumstances. In a case which involves an allegation of authorisation by supply, these circumstances may include the nature of the relationship between the alleged authoriser and the primary infringer, whether the equipment or other material supplied constitutes the means used to infringe, whether it is inevitable it will be used to infringe, the degree of control which the supplier retains and whether he has taken any steps to prevent infringement. These are matters to be taken into account and may or may not be determinative depending upon all the other circumstances." This case, 20th Century Fox and Newzbin is interesting as it is a frequently used argument in the recent file sharing cases by ACS law's clients ie that the accused has often authorised the download, note; that the accused is always the person whose name is on the IPS invoice/bill.

The Newzbin case clearly shows in my view that where the person whose name on the bill has no idea that a) the alleged act took place, b) would not have granted permission for the act to occur c) had no filesharing software on his own machine then there can be no question of any infirngment under section 16. If however you allow filesharing to go on 'under your roof' and you pay the bill then section 16 may well apply to you.

Michael Coyle is a Solicitor Advocate and can be contacted at michael.coyle@lawdit.co.uk or via the office on 023 80 235979