Copyright infringement is the subject matter of this article. Certain comments by Newey J, further to an application brought by the claimant in the case below are of interest to those who specialise in copyright matters. In giving judgment he commented that a copyright infringer was more akin to a trespasser than a thief. It is of some general interest because the words – “theft” , “piracy” and “stealing” are commonly used when referring to copyright infringement. So despite this being a slightly dated Judgment, taking place at the beginning of this year, for copyright infringement enthusiasts everywhere, I decided to review the case.
The case is 20th Century Fox Film Corporation (claimant) v. Harris (defendants)  EWHC 159 (Ch);  [F.S.R]. In a nutshell the case emphasises that a copyright owner does not have a proprietary claim in copyright infringement.
Initially 20th Century Fox brought proceedings for copyright infringement against Newzbin Ltd in a representative capacity on behalf of themselves and other members of the Motion Picture Association of America against the Newzbin Internet site from which illegal downloading of copyrighted film was taking place. The claimant successfully obtained judgment in these proceedings and the Newzbin site was taken down (see: 20th Century fox Film Corporation V Newzbin Ltd  EWHC 608 (ch);  F.S.R 21, ChD). A second website with the same name Newzbin2 was launched soon afterwards. These subsequent proceedings form the subject matter of this article.
The defendants were individuals and companies alleged to own and control Newzbin2 either directly or indirectly (the 2nd defendant held a power of attorney for a Panamanian company which owned the property in which the 1st defendant lived). The claims against the defendants were for copyright infringement and unlawful conspiracy.
The claimant sought proprietary injunctions against all 5 defendants. The claimant contended that the proceeds of the alleged infringement were held by the defendants on a constructive trust for the relevant copyright owners. In particular the claimant sought to draw an analogy with theft laws and the availability of the equitable remedy of tracing. The 1st and 2nd defendants alleged that the claimants had no such proprietary claim.
Newey j, refused the claimant’s application. He commented that there were closer parallels between copyright and the law of trespass than theft law, and that the relevant case law did not support the proposition that a landowner could assert a proprietary claim against a trespasser. Further, although s96 CDPA 1988 was drawn widely enough to include a proprietary claim, affording “all such relief by way of damages…..or otherwise”, it did not provide specifically for a proprietary claim. In other words, the application was a bit of a pioneering adventure.
If allowed a proprietary claim for all proceeds of the infringement ( not just for profits) was likely to stifle innovation and enterprise.
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